High Court dismisses judicial review against Garda Ombudsman for discontinuing investigation without prior notice of report contents.

THE HIGH COURT JUDICIAL REVIEW [2025] IEHC 650 RECORD NO. 2024/805 JR BETWEEN

RAYMOND QUINN

APPLICANT

AND

GARDA SÍOCHÁNA OMBUDSMAN COMMISSION

RESPONDENT

AND

COMMISSIONER OF AN GARDA SÍOCHÁNA

NOTICE PARTY

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 26th day of November, 2025.

INTRODUCTION

1. These proceedings concern the lawfulness of a series of decisions made by the Garda Síochána Ombudsman Commission’s (hereinafter “GSOC”) starting with decisions to previously admit a complaint for unsupervised investigation under ss. 87 and 94(1) of the Garda Síochána Act, 2005 (hereinafter “the 2005 Act”) made on the 1st of February, 2024 and culminating in a decision on the 18th of June, 2024, to discontinue that investigation under s. 93(1)(c) of the 2005 Act.

2. The Applicant contends, inter alia, that there has been a breach of s. 103 of the 2005 Act and of the requirements of fair procedures in failing to keep him informed of the progress and results of the unsupervised investigation and failing to afford him advance notice of the contents of an investigation report relied upon by GSOC in the decision to discontinue the investigation.

3. In addition to a quashing order, the Applicant seeks an order remitting his complaint for determination by Fiosrú, the newly established Office of the Police Ombudsman by reason of concerns in relation to the effectiveness and independence of an unsupervised investigation conducted by An Garda Síochána (hereinafter “AGS”) in respect of its own members.

BACKGROUND

4. The Applicant described himself as a retired financial consultant and former Chief Compliance Officer at a securities firm. He claims to have fallen victim to a conspiracy to defraud him, commencing at a time when he was working for a venture capital firm in the US in 2007. This fraud is alleged to have been orchestrated on behalf of a named Russian oligarch by persons who are not resident in Ireland. The Applicant claims that because of the financial fraud perpetrated against him, he invested sums in a proposed gas and oil project around that time. It is unclear from the papers what, if any, evidence there is to support this claim beyond the Applicant’s assertions. It seems from what the Applicant says that the deal never closed but the Applicant never recovered the substantial sums advanced.

5. The Applicant returned to Ireland in 2013 and lives in County Donegal. Following his return, he claims to have been approached by an individual in relation to transfer of money, ostensibly to secure the release of funds on account in the UK. Suspecting ongoing fraud, he made no fund transfer on foot of this approach. Instead, following

the contact made by a person the Applicant identifies as a UK resident, the Applicant made complaint to the Gardaí in October, 2015.

6. On the Applicant’s account (corroborated by correspondence exhibited in these proceedings) there appears to have followed some type of Garda investigation, the details of which are unclear and are relevant only by way of background context given its historic nature but also with regards to the Applicant’s ongoing dissatisfaction with the said investigation. The Applicant states that he was advised by AGS in 2018 that the matter was not being pursued. He claims that he was told that this was due to lack of evidence indicating that offenders were resident in Ireland or that the money was obtained from the Applicant because of advance fee fraud activities.

7. The Applicant does not appear to dispute that the alleged perpetrators were not resident in Ireland. He nonetheless complains that the investigation of his complaint was inadequate. In this regard he refers to his belief that the non-resident individuals he identified were never interviewed. While there is reference in some of the correspondence exhibited to a review of this decision culminating in a decision confirming the earlier position in 2021, I have little information in relation to this review and the Applicant did not refer to it on affidavit in grounding these proceedings, albeit he exhibited correspondence in which it was mentioned.

8. It seems that there the matter lay until 2022 when the Applicant instructed his current solicitors who are based in Northern Ireland. It appears that they corresponded with both the Police Service of Northern Ireland (hereinafter “PSNI”) and AGS on the Applicant’s behalf.

9. The Applicant claims that he was advised in March, 2023, that the PSNI could not investigate the matter any further as that there was no identifiable suspect in Northern Ireland. It is not clear whether the Applicant is taking any further action in respect of this decision which mirrors reasoning he had previously been given by AGS in 2018, a

decision he appears not to have been prepared to accept.

10. According to the Applicant, a meeting was organised with him by AGS in April, 2023.

At this meeting, he says he was invited to prepare an updated statement outlining his specific allegations of fraud and connections to the named Russian oligarch. It is not clear whether the Applicant ever provided that updated statement. It is certainly suggested in correspondence from AGS exhibited in the proceedings that he has not done so.

11. In October, 2023, the Applicant made at least two complaints to AGS concerning the investigation of his previous complaints relating to:

(i) an attempted theft and fraud of the Applicant and his business partner allegedly perpetrated by a named, non-Irish resident, Russian oligarch, and

(ii) standards in public office in respect of a politician.

12. A third complaint is referenced in correspondence concerning Commissioner Drew Harris and how this complaint was handled but this is not expanded upon and may or may not relate to the same subject matter. The second complaint was not the focus of any submission. I understand from what was stated in submissions before the Court that I do not need to concern myself with it.

13. The complaints presented to GSOC and properly the subject of these proceedings therefore turn on the failure of named members of AGS to respond to concerns the Applicant raised about the handling by AGS of his original complaints, specifically through what he identifies as a failure to release two investigation reports concerning complaints he made in 2023, seemingly in respect of matters previously the subject of investigation (presumably the investigation which was closed in 2018 and subject to review culminating in communication of confirmation of this decision following review in 2021).

14. The immediate precipitating factor in the complaints presented to GSOC in October and November, 2023, appears to be a lack of response or engagement with the Applicant’s correspondence with (AGS) seeking copies of the said two reports into what he characterised as “two very serious criminal matters”.

15. In a series of emails from 31st March 2023 to 14th July 2023, the Applicant maintains that he was promised two reports relating to his original complaints, as I understand it, the complaints concerning attempted fraud and standards in public office. The emails in which it is alleged these promises were made (exhibited for the first time in a replying affidavit sworn on the 7th of March, 2025 and previously unseen by GSOC as they were not furnished in support of the original complaint at admissibility decision stage) were received from one Superintendent Deely who stated:

a. "Reports on the issues raised have been sought from the relevant Regional Assistant Commissioners and this office will be in contact you further on receipt of same" (31st March 2023);

b. "...a report is awaited This office will be contact with you on receipt of same" (18th April 2023);

c. "It is expected that a report will be received from the relevant sections in the near future and I will be in contact with you on receipt of same" (26th June 2023);

d. "As previously outlined I will be in contact with you on receipt of reply for the relevant sections (sic)" (14th July 2023).

16. It is a matter of ongoing contention for the Applicant and central to his complaint to GSOC that he has never been provided with these “two reports” despite what he sees as a commitment in this correspondence to provide him with same.

17. Over the course of six emails between the 2nd of September, 2023 and the 15th of October, 2023, directed to a named Deputy Commissioner, the Applicant reiterated his request for copies of the said reports. In the course of this correspondence, he claimed variously to be the victim of “official collusion”, “Croppies-lie-down” and “anti- American hate crime” and alleged a “cover-up” by the Senior Leadership Team within AGS.

18. Separately, also seemingly by reason of the failure to provide him with the copy reports, the Applicant made complaint to the Assistant Commissioner for Governance and Accountability by email dated the 21st of August, 2023, alleging that his complaints were being swept “under the carpet”. This email was acknowledged but without substantive response prior to the presentation of a complaint to GSOC.

19. In his correspondence with the Assistant Commissioner for Governance and Accountability, the Applicant said, inter alia, that he was calling for the “cancellation”

of the International Financial Services Centre (IFSC) (which incidentally he claimed was established following a casual suggestion by him in the early 1980s), citing an alleged laundering of his money using the IFSC by the Russian oligarch. It is unclear what, if any, objective evidential basis there was for the host of varied matters (ranging from Garda corruption and the Morris Tribunal in Donegal, weekend sex orgies allegedly engaged in by members of AGS to local drug dealing to “official Irish government-MI6 collusion”) all ventilated in a seemingly scatter gun manner in the Applicant’s correspondence.

20. Consequent upon the lack of response to his correspondence with the Deputy Commissioner and the Assistant Commissioner for Governance and Accountability, the Applicant complained to GSOC on the 29th of October, 2023 and the 6th of November, 2023.

GSOC DECISION-MAKING ON THE COMPLAINTS

21. The Applicant’s first complaint, made by email on the 29th of October, 2023, was made against a Deputy Commissioner “for not responding to six emails I sent her concerning the release of two reports ...”

22. The second complaint concerned the same subject matter, though this was made against the Assistant Commissioner for Governance and Accountability, and it explicitly referenced “the release of two reports”. The subject of the Applicant’s correspondence with the Assistant Commissioner appeared to be a complaint against the Deputy Commissioner (the subject of the first complaint outlined at para. 18) for her alleged

misconduct in failing to respond to any of his emails concerning the release of the two reports regarding the Garda handling of two previous “very serious complaints.”

23. On the 9th of January, 2024, the GSOC acknowledged receipt of the Applicant's email complaints and asked the Applicant certain questions to enable it to consider his case for admissibility, specifically whether there had been any further correspondence from AGS.

24. By three separate emails dated the 14th of January, 2024, the Applicant sent GSOC the following:

I. A reply to GSOC's email of the 9th of January, 2024, answering the questions asked therein.

II. A chain of emails between the Applicant and a member of AGS based in Convoy Garda Station, Co. Donegal, over the period from the 2nd of November 2023 to the 8th of January 2024.

III. A chain of emails between the Applicant and the Deputy Commissioner the subject of his first complaint (and other members of A G S ), over the period from 2nd of September 2023 to the 28th of November, 2023.

25. In correspondence dated the 28th of November, 2023, issued on behalf of the Deputy Commissioner who was the subject of the first complaint, it was stated that the Applicant had been advised to make a statement in respect of his allegations but had failed to do so. The Applicant was also reminded that in March, 2018, he had been advised that there was no evidence to merit a criminal investigation in this jurisdiction in respect of his theft and fraud allegation against a named Russian oligarch. The Applicant was also reminded that this decision was subsequently confirmed following a review by the Garda National Economic Crime Bureau in September, 2021.

26. The Applicant’s response to the emailed correspondence of the 28th of November, 2023, by way of reply to Superintendent Helen Deely has not been put in evidence, notwithstanding that this correspondence was also copied to his solicitor and notwithstanding that in forwarding it to GSOC, he described the letter of the 28th of

November, 2023, as an attempt to “discredit” him. Although he told GSOC that the letter is “full of misrepresentations” and “one blatant inaccuracy”, he did not provide a copy of his response to the letter (although he referred to the fact that there was one).

Furthermore, he did not identify what the alleged misrepresentations or inaccuracies were in his correspondence with GSOC nor on affidavit in these proceedings. There is also no evidence that he engaged with the Garda Siochana Investigating Officer (hereinafter “GSIO”) in relation to any misrepresentation or inaccuracy in this letter, although the GSIO would have access to any response he sent to AGS.

27. On the 1st of February, 2024, GSOC determined that the Applicant’s two complaints as against the Deputy Commissioner and the Assistant Commissioner of Governance and Accountability to be admissible pursuant to s. 87 of the 2005 Act. The essence of the admitted complaints as recorded in the Admissibility Determination document exhibited on behalf of GSOC in response to these proceedings was that the Applicant had neither received a copy of the two reports he was seeking, a response indicating when he would receive them nor a decision declining to release them.

28. The complaints as admitted for investigation were characterised as a complaint of neglect of duty which it was decided was suitable for investigation pursuant to s. 94(1)

of the 2005 Act.

29. The Applicant was notified by letter dated the 2nd of February, 2024, that GSOC had determined his complaint to be admissible. He was advised that the matter would be investigated by a GSIO and that “GSOC will contact you during the process”. He was provided with an information leaflet giving more details about this type of investigation.

He was advised that GSOC would write to him again to give him the name of the GSIO.

30. The Applicant's complaint was thereafter allocated to a GSIO for an “unsupervised investigation” pursuant to section 94(1) of the 2005 Act.

31. It bears emphasis in light of complaints ventilated before me in respect of the GSOC

decision-making process that GSOC informed the Applicant in writing on the 2nd of February, 2024 and on the 19th of February, 2024, that it was “important” that a complainant “engage with” the GSIO “so that the investigation can progress and be completed as quickly as possible.” It was stressed in the information provided that if a complainant had any questions about the investigation, they should contact the GSIO. Furthermore, on the 15th of March, 2024, GSOC advised the Applicant to forward relevant information directly to the GSIO assigned to the matter (whose name, rank, and department had been provided). It was therefore made abundantly clear that the GSIO and not GSOC were conducting the investigation and relevant information should be provided to the GSIO.

32. Upon notification of the admissibility decision, however, the Applicant immediately engaged in correspondence in person and through his solicitor objecting to the matter proceeding as an unsupervised investigation and seeking confirmation that the matter would be investigated instead by GSOC. There is no evidence of engagement on his behalf with the GSIO, although the Applicant’s solicitor replied on his behalf to a letter dated the 6th of February, 2024, from the Assistant Commissioner in which it was pointed out that in March, 2018, the Applicant had been advised of the decision that there was no evidence to merit a criminal investigation regarding his complaint of fraud/money laundering in this jurisdiction concerning the Russian oligarch. It was further pointed out that the Applicant had been invited to make a detailed statement of complaint but had declined to do so. He was asked to contact his local Garda station about making a statement of complaint and to specify the reports he was referring to in his complaint. In the reply on behalf of the Applicant dated the 12th of February, 2024, the reports in question were identified as internal reports (naming two different Assistant Commissioners) in relation to how previous complaints were dealt with. It was claimed that it had been committed that these reports would be provided to the Applicant “once completed.”

33. By letter from GSOC dated the 19th of February, 2024, it was confirmed that a named Chief Superintendent had been appointed to investigate the Applicant’s complaint. The Applicant was advised that GSOC would contact him again after the investigation was completed or if the GSIO informed GSOC that there were delays in the investigation.

He was advised of an entitlement to request a review after the investigation was completed and he had been informed of the outcome. He was advised that such review would be focused on the way the complaint was investigated rather than a second or further investigation.

34. Through a series of letters in February, 2024, the Applicant and the Applicant's solicitor wrote to GSOC seeking a review of the classification and allocation of the Applicant's complaint for unsupervised investigation. By email correspondence dated the 19th of February, 2024, GSOC refused to do so. They confirmed that the matter was proceeding as an unsupervised investigation, again providing an information leaflet explaining the nature of the investigation.

35. In separate correspondence the Applicant was asked by letter dated the 28th of February, 2024, directed to his solicitor from the Assistant Commissioner for Governance and Accountability of AGS to provide any correspondence referred to by him that commits to provide the Applicant with the two garda reports. It was clarified that the term “report”

within AGS parlance can often refer to correspondence and not necessarily an investigation report. The letter stated:

“I note from your correspondence that 'A Supt Helen Deely committed both reports to our client once completed - The Dep Commr Anne Marie McMahons office requested both reports as well.’ I would be grateful if you could forward me the correspondence that you refer to above that commits to provide your client with two Garda reports. By way of clarification, the term 'report' within An Garda Siochana can often refer to correspondence, and not necessarily an investigation file or full investigation report. From enquiries carried out though my office, it would appear that your client was informed that a report' was being sought on the issue. Any such reference to a 'report' would generally be referencing internal Garda correspondence. If you can provide context to the assertion regarding the commitment to provide 'both reports', I may be in a position to offer further clarification.

The allegations reported by your client are an operational matter, and l note your client has engaged with his liaison Garda nomination in Letterkenny. I also note that in March 2018 your client was advised of the decision that there was no evidence to merit a criminal investigation, regarding his complaint of fraud/money laundering in this jurisdiction concerning a Russian national [named].”

36. As with the letter of the 28th of November, 2023, there was no evidence that the Applicant responded to this letter, although I took the unusual step of affording the Applicant an opportunity to produce any response by swearing a supplemental affidavit in these proceedings at the close of the hearing before me on the 6th of November, 2025 (see para.

52 below).

37. In response to a formal request for a review of “the ongoing decision not to appoint an investigator independent of Gardai” made by email on the 14th of March, 2023, by return email GSOC explained that complaints of conduct which is not criminal but appears to involve a breach of discipline are investigated by GSIOs under the Garda Síochána (Discipline) Regulations, 2007 (hereinafter “the Discipline Regulations”) as GSOC did not have the resources to investigate all complaints of alleged breaches of the Discipline Regulations received each year. The safeguards in place to ensure impartiality were outlined. GSOC exhibits in these proceedings the relevant provisions of the Memorandum of Understanding, Protocols and Agreement on Operational Matters between GSOC and AGS made on the 23rd of September, 2013, pursuant to s.

108(d) of the 2005 Act

38. In response to this email, the Applicant wrote by email to “file a criminal complaint for what amounts to a sophisticated anti-American hate crime” by the Gardaí against him.

39. Over the course of back-and-forth correspondence, the Applicant and his solicitor were advised that there was no statutory review of the decision-making process regarding the admissibility of any complaint and that GSOC stood over its designation of the complaint for investigation under s. 94(1) of the 2005 Act, there being no current issue which could undermine the integrity of the investigation.

40. In response to a complaint that the process was in breach of Article 6 of the European Convention on Human Rights advanced in a letter from the Applicant’s solicitor dated the 8th of April, 2024, identifying four separate concerns, the Applicant and his solicitor were reminded that an investigation under s. 94(1) of the 2005 Act was solely to explore whether any Garda Member may be in breach of the Discipline Regulations.

41. The correspondence rested with a letter dated the 17th of April, 2024, from GSOC and no further issue was raised in correspondence regarding a review of the designation of the complaint and its investigation under s. 94 of the 2005 Act.

42. The Applicant received no further communication from GSOC until he was informed on the 18th of June, 2024, that GSOC's investigation of his complaint had been discontinued. In advance of that date, on the 7th of June 2024, AGS sent the Respondent a report dated the 1st of June 2024, by the appointed GSIO. On the 17th of June 2024, clarification on one specific aspect of the complaint (undisclosed) was sought. The Senior Case Officer responsible for s. 94 investigations, acting on behalf of the Respondent and pursuant to a delegation to him of the relevant powers (including those pursuant to s. 93 of the 2005 Act), considered the GSIO’s report and the clarification provided by the GSIO on the 17th of June 2024. He decided that there had been no breach of discipline identified and that the complaint should be discontinued.

43. The Applicant was not informed of the receipt of the investigation report nor of the results of the investigation before the decision to discontinue was communicated.

He has not at any stage been provided with a copy of the GSIO investigation report.

In these proceedings, GSOC asserts asserted public interest privilege over the said GSIO report and the related clarification on the grounds that its disclosure could jeopardise the effective functioning of GSOC in receiving and investigating complaints made against members of AGS and could also jeopardise the investigative effectiveness of the AGS. The Applicant has not pursued a discovery application in respect of the GSIO report in which a claim of privilege might be tested. However, a redacted document recording GSOC consideration of the GSIO report in arriving at a decision to discontinue the investigation, said to have been redacted to remove privileged material, has been exhibited in these proceedings.

44. GSOC’s consideration of the said report in deciding to discontinue proceedings exhibited in redacted format in the within proceedings is a document titled “Discontinuation of the investigation is approved under section 93(1)(c) as further investigation is not necessary or reasonably practicable.”

45. This consideration document begins with a summary of the background of the complaint, the nature of the complaint and notes that a report was received from the Chief Superintendent appointed to investigate along with “other related documentation touching on the admitted complaint.” These documents are not identifiable from the redacted document. There then appears a reference to the recommendation of the GSIO to GSOC “to discontinue the investigation on the following basis:” and the entirety of what follows has been redacted.

46. Under the heading “Conclusion”, the decision states:

“Having carefully considered the GSIO’s investigation report and all associated documentation on file including statements and reports, I am approving discontinuation of the investigation under section 93(1)(1) as further investigation is not necessary or reasonably practicable as the threshold for a breach of discipline, in my view, has not been met.”

47. The document then records as follows:

“In summary, I am satisfied that the allegations have been satisfactorily addressed. The matters raised by Mr Quinn relating to his complaints of Corruption/Fraud have been addressed and it is noted that Mr Quinn despite being asked to do so has failed to provide statements of complaint in certain instances and decisions not to prosecute have also been made and this has been communicated to him. As regards the request for the 'two reports', clarification as to what reports Mr Quinn is referring to was sought from KRW Law and to any committed undertakings that they would be provided, which is not evident from the documentation provided. There may well be a misunderstanding as regards to the nature and context of a report in Garda parlance as explained by Assistant Commissioner [Name] to Mr Quinn's legal representatives in his correspondence dated 07 of December, 2024. However, and in any event, operational Garda reports would not be disclosed to members of the public. As the allegations have been satisfactorily addressed and I am in agreement with the findings and recommendations following the section 94(1) investigation conducted by the GSIO, discontinuance is approved.”

48. By letter sent by email of 18th of June, 2024, the Applicant was informed by GSOC that:

“Having conducted an initial examination of the facts of the case and as a result of information obtained after the complaint was determined to be admissible, GSOC has decided to discontinue investigation of the complaint under section 93(1)(c) of the Act as, given all the circumstances, further investigation is not necessary or reasonably practicable.

Having carefully considered the GSIO's investigation report and all associated documentation on file including statements and reports, GSOC is satisfied that the allegations have been satisfactorily addressed and that the threshold for a breach of discipline has not been met. Therefore, discontinuation of this complaint has been approved. Regarding the matter of reports you sought from An Garda Siochana (AGS), it is noted that there is no evidence that AGS committed to provide you with copies, nor would it be Garda procedure to disclose operational Garda reports to members of the public. Regarding the allegation that your queries sent via email were not addressed, it is evident from the report received by GSOC that AGS did respond to your queries and therefore no breach of discipline can be observed.

GSOC will take no further action in this matter.”

49. The Applicant states that he was not consulted at any stage by the GSIO. He contends that he should have been provided with a copy of the GSIO investigation report or a summary of its contents before GSOC decided to discontinue investigation of the complaint.

It is therefore somewhat surprising that the Applicant did not seek a copy of the GSIO investigation report on receipt of the letter from GSOC dated the 18th of June, 2024 and in advance of proceeding by way of judicial review. Nor did he ask for the dates or details

of when it was contended that his queries had been addressed or otherwise query the reasons for the decision to approve discontinuance as given in the decision letter.

50. In these proceedings, GSOC accepts that it was not aware of the emails referencing the release of two reports identified at para. 15 above until these proceedings were issued and after the complaint was discontinued. It is clear, however, that GSOC was aware that the GSIO had asked the Applicant to clarify the basis for his understanding that a commitment had been made and explained the use of the word “report” in Garda parlance. It is also clear from this correspondence that the GSIO was aware that the Applicant had been told that a report was being sought, as this is referenced in the letter to the Applicant’s solicitor and exhibited in these proceedings as an being a document appended to the GSIO report.

51. The Applicant has not exhibited notification received by him from the Garda Commissioner pursuant to s. 94(9) of the 2005 Act communicating the results of the unsupervised investigation conducted by the GSIO but it is no part of the case the Applicant makes that the Garda Commissioner failed to give notice of the outcome of the unsupervised investigation.

52. In a supplemental affidavit sworn and filed on the 12th of November, 2025, after the

conclusion of the hearing before me but on foot of liberty granted by me without objection on behalf of GSOC, the Applicant confirmed that he had not responded to this letter because “it could have been construed as interfering with the investigation by communication with the subject of an investigation” as GSOC had already determined the complaint admissible at this stage.

LEGAL FRAMEWORK

53. Until its recent repeal, the 2005 Act was the primary legislation governing the structure, functions and accountability of AGS. GSOC was established under s. 57 of the 2005 Act as an independent statutory body to ensure openness, transparency, and accountability in handling complaints against members of AGS with the objective of maintaining public confidence in policing.

54. Under s. 67(1) of the 2005 Act, the objectives of GSOC are:

“to ensure that its functions are performed in an efficient and effective manner and with full fairness to all persons involved in complaints and investigations under Part 4 concerning the conduct of F132[members of the Garda Siochana, to promote and encourage the use of mediation and other informal means of resolving complaints that are suitable for resolution by such means, and to promote public confidence in the process for resolving complaints referred to in paragraph (a).”

55. GSOC’s core functions under the 2005 Act are to investigate complaints from the public about alleged misconduct by Garda members, initiate investigations in the public interest, even without a complaint, investigate referrals from the Garda Commissioner or Minister for Justice in cases involving death or serious harm (see s.102), oversee disciplinary investigations and recommend sanctions where appropriate.

56. Section 81 of the 2005 Act provides for the confidentiality of information obtained by GSOC and states:

81.— (1) A person who is or was a member or officer of the Ombudsman Commission or who is or was engaged under contract or other arrangement by the Commission shall not disclose, in or outside the State, information obtained in carrying out the duties of that person’s office or of his or her contract or other arrangement with the Commission if the disclosure is likely to have a harmful effect.

(2) For the purpose of this section, the disclosure of information referred to in subsection (1) does not have a harmful effect unless it—

(a) impedes an investigation under Part 4 or otherwise prejudices the effective performance of the Ombudsman Commission’s functions,

(b) results in the identification of a person—

(i) who is a complainant or the subject of a complaint, and

(ii) whose identity is not at the time of the disclosure a matter of public knowledge,

(c) results in the publication of information that—

(i) relates to a person who is a complainant or the subject of a complaint or who has given evidence to the Ombudsman Commission, and

(ii) is of such a nature that its publication would be likely to discourage the person to whom the information relates or any other person from reporting a complaint or giving evidence to the Ombudsman Commission, or

(d) results in the publication of personal information (within the meaning of section 2(1) of the Freedom of Information Act 2014) obtained in the course of an investigation and constitutes an unwarranted and serious infringement of a person’s right to privacy.

(3) For the purpose of this section, a person is presumed, unless the contrary is proved, to know that disclosure of information referred to in subsection (1) is likely to have a harmful effect if a reasonable person would, in all the circumstances, be aware that its disclosure could have that effect.

(4) Subsection (1) does not prohibit a person referred to in that subsection from disclosing information if the disclosure—

(a) is made to—

(i) the Garda Commissioner,

(ii) the Minister,

(iii) the Attorney General,

(iv) the Director of Public Prosecutions,

(v) the Chief State Solicitor,

(vi) the Criminal Assets Bureau,

(vii) the Comptroller and Auditor General,

(viii) the Garda Síochána Inspectorate or an officer of the Inspectorate,

(ix) the Revenue Commissioners, or

(x) a member of either of the Houses of the Oireachtas where relevant to the proper discharge of that member’s functions,

(b) is made under Part 4 to a person in relation to—

(i) a complaint made by the person, or

(ii) an investigation concerning the person,

(c) is made to a court,

(d) is made to a tribunal appointed under the Tribunals of Inquiry (Evidence) Acts 1921 to 2011, a commission of investigation established under the Commissions of Investigation Act 2004 or a committee within the meaning of section 2 of the Houses of the Oireachtas (Inquiries, Privileges and Procedures) Act 2013 for the purposes of a Part 2 inquiry, within the meaning of that section, under that Act,

(e) is made in the course of, and in accordance with, the duties of that person’s office or employment or of his or her duties under a contract or other arrangement to work with or for the Ombudsman Commission,

(f) is authorised by the Ombudsman Commission, or

(g) is otherwise authorised by law.

(5) A person who contravenes subsection (1) is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €50,000 or imprisonment for a term not exceeding 5 years or both.

(6) A person who contravenes subsection (1) and who receives any gift, consideration or advantage as an inducement to disclose the information to

which the contravention relates or as a reward for, or otherwise on account of, the disclosure of that information is guilty of an offence and is liable—

(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both, or

(b) on conviction on indictment, to a fine not exceeding €75,000 or imprisonment for a term not exceeding 7 years or both.

(7) The provisions of this section are in addition to, and not in substitution for, the provisions of the Official Secrets Act 1963.”

57. Section 83 of the 2005 Act provides for the making of complaints by members of the public as follows:

“Subject to section 84, a complaint concerning any conduct of a member of the Garda Siochana that is alleged to constitute misbehaviour may be made to the Ombudsman Commission-

(a)by a member of the public who is directly affected by, or who witnesses, the conduct, or

(b) on behalf of that member of the public, by any other person if the member of the public on whose behalf the complaint is being made consents in writing or orally to its being made or is, because of age or a mental or physical condition, incapable of giving consent.”

58. Section 84 provides that a complaint must be made within 12 months beginning on the date of the conduct giving rise to the complaint, albeit the time limit may be extended if there is good reason for doing so.

59. Section 86 provides that upon receipt of a complaint from a person under s. 83(2), an officer of the Commission shall immediately record the complaint and the date and time of its receipt, provide the complainant with an acknowledgement of its receipt and notify the Garda Commissioner of the complaint.

60. Section 87 of the 2005 Act provides for determinations on admissibility as follows:

“87.- (1) On receiving a complaint directly from a complainant or receiving a copy or record of a complaint from the Garda Commissioner or a member of the Garda Siochana, the Ombudsman Commission shall determine whether the complaint is admissible or inadmissible.

(2) Subject to subsection (3), a complaint concerning the conduct of a member of the Garda Siochana is admissible if-

(a) the complaint is made by or on behalf of a member of the public authorised under section 83 to make the complaint,

(b) the conduct alleged would, if substantiated, constitute misbehaviour by the member of the Garda Siochana,

(c) the complaint is made within the time allowed under section 84, and

(d) the complaint is not frivolous or vexatious.

(3) The following matters are not admissible complaints:

(a) a complaint in so far as it relates to the general direction and control of the Garda Siochana by the Garda Commissioner;

(b) a complaint about the conduct of a member of the Garda Siochana while the member was not on duty, unless the conduct alleged would, if proved, be likely to bring discredit on the Garda Siochana ...”

61. Accordingly, upon receipt, a complaint is assessed by GSOC to see if it meets the legal and procedural requirements for investigation. Jurisdiction is established if the complaint concerns a member of AGS (not a civilian staff member or another agency)

made within the statutory time limit (usually 6 months from the alleged incident) and the complaint is not frivolous, vexatious, or made in bad faith. If the complaint is assessed as inadmissible the complainant is so informed and the complaint is closed.

62. Where a complaint is admissible, an assessment must be carried out to direct how it should be investigated. Section 92 prescribes the procedures to be adopted in respect of admissible complaints as follows:

“If an admissible complaint is not resolved pursuant to the guidelines under section 90 or is a complaint referred to in paragraphs (a) to (c) of section 90(1), the Ombudsman Commission may, as it considers appropriate-

(a) refer the complaint to the Garda Commissioner to be dealt with in accordance with section 94,

(b) conduct an investigation under section 95, but, subject to section 95(2), only if the conduct alleged in the complaint does not appear to constitute an offence, or

(c) direct a designated officer of the Commission to investigate the complaint under section 98.”

63. In deciding on the form of further investigation under s. 92, GSOC assesses if the allegation involves potential criminal conduct or disciplinary breaches. No provision is made for consultation with a complainant in respect of the mode of investigation and the decision is that of GSOC.

64. Section 93 provides for the discontinuation of investigations as follows:

“93.- (1) Notwithstanding any other provision of this Act, the Ombudsman Commission may direct that the investigation of a complaint be discontinued if-

(a) as a result of information obtained after the complaint was determined to be admissible, the Commission considers that the complaint is frivolous or vexatious,

(b) the Commission considers that the complaint was made in the knowledge that it was false or misleading, or

(c) having regard to all the circumstances, the Commission considers that further investigation is not necessary or reasonably practicable.

(2) Where a direction is made under subsection (1) in relation to a complaint, the Ombudsman Commission shall notify in writing the following of its decision and the reason:

(a) the complainant;

(b) the member of the Garda Siochana whose conduct was the subject matter of the complaint;

(c) the Garda Commissioner.”

65. Although express provision is made requiring communication of a decision to discontinue proceedings and the reason for this decision in writing, there is no requirement under s. 93 for consultation with the Complainant before an investigation is discontinued by GSOC.

66. When the complaint suggests that a Garda member may have committed a criminal offence, the Respondent investigates under powers contained in s. 98 of the 2005 Act like those of the Gardaí, including interviewing witnesses, seizing evidence, and entering premises.

67. Complaints referred in accordance with s. 92(a) for investigation under s. 94 are matters which have been assessed as involving breaches of Garda discipline (e.g., neglect of duty, improper conduct) but not criminal behaviour. Section 94 provides for investigation of said disciplinary matters as follows:

“(1) On referral of a complaint under section 92(a), the Garda Commissioner shall-

(a) appoint a member of the Garda Siochana to investigate the complaint under the Disciplinary Regulations, and

(b) ensure that the appointed member has not been involved in any capacity in relation to an earlier aspect of the case.

(2)The Ombudsman Commission may require that no appointment be made under this section without its prior approval of the member whom the Garda

Commissioner proposes to appoint.

(3)The Ombudsman Commission may decide, either on referring the complaint under section 92(a) or at any time during the investigation, to supervise the investigation of a complaint if it considers it desirable in the public interest to do so.

(4)The Ombudsman Commission shall notify the Garda Commissioner of its intention to supervise the investigation of a complaint.

(5)If the investigation is supervised, the Ombudsman Commission may do one or more of the following:

(a) require the appointed member to keep it informed of the progress of the investigation;

(b) require the appointed member to submit to it such interim reports at such times and in relation to such matters as the Commission may direct;

(c) arrange for a designated officer of the Commission to be present during any interview conducted by the appointed member in the course of the investigation,·

(d) direct the appointed member to investigate further any aspect of the complaint.

(6)If the investigation is supervised, the appointed member shall submit a report on the results of the investigation to the Ombudsman Commission as soon as practicable after completing the investigation and within the time limit that the Commission may specify for submission of the report.

(7)If the Ombudsman Commission, after considering the report submitted under subsection (6), is of the opinion that a breach of the Disciplinary Regulations may have been committed by the member of the Garda Siochana whose conduct was under investigation, it shall make a report in accordance with section 97 to the Garda Commissioner.

(8)If the Ombudsman Commission, after considering the report submitted under subsection (6), is of the opinion that the conduct under investigation may constitute an offence by the member of the Garda Siochana concerned, the Commission shall-

(a) direct a designated officer to investigate the complaint under section 98,or

(b) comply with section 101(2) as though the report had been made by a

designated officer under section 101(]).

(9)If the investigation is not supervised, the Garda Commissioner shall inform the Ombudsman Commission, the complainant and the member of the Garda Siochana whose conduct was under investigation of-

(a) the results of any disciplinary proceedings instituted following the investigation or, if no such proceedings are instituted, of the results of the investigation, and

(b) if appropriate, any action that the Garda Commissioner proposes to take in relation to that member.

(10) If dissatisfied with the results of an unsupervised investigation or with any disciplinary proceedings instituted as a result of that investigation, the complainant may request the Ombudsman Commission to review the matter.

(11) Following a review of the matter, the Ombudsman Commission may-

(a) request the Garda Commissioner to review the investigation of the complaint and to report back to it concerning any further action that he or she proposes to take in the matter, or

(b) if it considers it necessary to do so, either investigate the complaint under section 95 or direct a designated officer of the Commission to investigate the complaint under section 98.

(12)Nothing in this section prevents the Ombudsman Commission from deciding at any time to take over the investigation of a complaint referred by it to the Garda Commissioner.”

68. Regulation 41(6) of the Discipline Regulations provides that when a complaint is referred by the Respondent to the Commissioner of AGS for unsupervised investigation:

“the Commissioner shall appoint a member under Regulation 14 or, as appropriate, Regulation 23 to investigate the complaint, and Part 2 or, as the case may be, Part 3 shall apply in relation to the investigation.”

69. Under the Scheme of the Discipline Regulations, GSOC’s only role is confined to require that they approve the appointment of the investigating member and the outcome of either the results of any disciplinary proceedings instituted following investigation or the results of investigation. The Discipline Regulations also provide for the conduct of a review in respect of an unsupervised investigation at the request of GSOC and a consequential reporting duty in respect of the outcome of the review. The decision whether to institute disciplinary proceedings or not remains a matter for AGS.

70. Section 95 of the 2005 Act provides for investigations by GSOC into complaints that do not appear to involve offences. Under s. 95, GSOC must give both the complainant, and the Garda member concerned an opportunity to be heard (in person or through a legal representative) and to present evidence and make submissions. After the investigation concludes, GSOC must prepare a report under s.97 and submit it to the Garda Commissioner. An investigation under s. 95 does not prevent a later investigation under s.98 (which deals with criminal matters).

71. Section 98 of the 2005 Act sets out the powers of designated officers of GSOC (not utilised in this case) for purpose of investigating complaints that appear to involve offences as follows:

“(1) If directed by the Ombudsman Commission under section 91(2)(b), 92(c), 94(8)(a) or 94(11)(b) to investigate a complaint under this section, a designated officer has for the purposes of the investigation all the powers, immunities and privileges conferred and all the duties imposed on any member of the Garda Siochana by or under any enactment or the common law, including those relating to the following matters:

(a) the entry and search of any place (other than a Garda Siochana station) pursuant to a warrant issued in accordance with law and the seizure of things authorised by the warrant;

(b) the arrest, with or without a warrant, of a person;

(c) the bringing of a charge against a person;

(d) the issue of a summons to a person;

(e) the search of a person and the taking of his or her photograph, fingerprints and palmprints,·

(f) the detention and questioning of a person;

(g) the taking of bodily samples or other things from a person for the purpose of forensic testing.

(2) For the purpose of subsection (1), an enactment conferring a power, immunity or privilege or imposing a duty on a member of the Garda Siochana in relation to any of the matters specified in that subsection applies with the following modifications and any other necessary modifications:

(a) subject to paragraph (c), a reference in the enactment to a member of the Garda Siochana is to be read as a reference to a designated officer of the Ombudsman Commission,·

(b) a reference in section 4 of the Criminal Justice Act 1984 or in the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochana Stations)

Regulations 1987 (S.1 No. 119 of 1987) to a member in charge of a Garda Siochana station is to be read as a reference to a designated officer of the Ombudsman Commission;

(c) a reference in the enactment to a member of the Garda Siochana not below the rank of inspector is to be read as a reference to a member of the Ombudsman Commission.

(3)Any person who delays, obstructs or interferes with a designated officer in the exercise of the powers conferred or the carrying out of the duties imposed under this section is guilty of an offence and is liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 12 months or both.

(4)An investigation of a matter under this section does not preclude the subsequent investigation of the matter under section 95... "

72. Finally, s. 103 of the 2005 Act sets out a duty to keep certain persons informed, as follows:

“(1) The Ombudsman Commission shall provide the following persons with sufficient information to keep them informed of the progress and results of an investigation under this Part:

(a)if the investigation resulted from a complaint-

(i) the complainant,

(ii) the member of the Garda Siochana whose conduct is the subject matter of the complaint,

(iii) the Garda Commissioner, and

(iv) any other person that the Commission considers has a sufficient interest in the matter;

(b)if the investigation is one to which section 102 applies-

(i) the member of the Garda Siochana whose conduct is the subject matter of the investigation if his or her identity is known,

(ii) the Garda Commissioner,

(iii) the Minister, and

(iv) any other person that the Commission considers has a sufficient interest in the matter;

(2)The duties imposed by subsection (]) do not extend to requiring the Ombudsman Commission to provide information the disclosure of which would, in its opinion-

(a) prejudice a criminal investigation or prosecution,

(b) jeopardise a persons safety, or

(c) for any other reason not be in the public interest."

73. The 2005 Act was repealed with transitional provisions by the Policing, Security and Community Safety Act, 2024 (hereinafter “the 2024 Act”) effective from the 2nd of April, 2025. GSOC has been permanently and fundamentally reformed by the Oireachtas. GSOC has been replaced with a new Office of the Police Ombudsman.

Section 5 of the 2024 Act has repealed the 2005 Act in its entirety.

74. Section 228 of the 2024 Act sets out transitional provisions for complaints and investigations that were initiated under the 2005 Act before its repeal. In short and in relevant part, if a determination on admissibility had not been made before repeal, the complaint is deemed to have been made under the 2024 Act. If a complaint was

referred and an investigation under s.94 had started but not finished, the 2005 Act still applies until completion.

ISSUES

75. A wide range of issues are pleaded in the Statement of Grounds (including the classification and allocation of the complaint, the independence and impartiality of the GSIO investigation, the lack of resources and personnel constraints of GSOC, the effect of transitional arrangements under the 2024 Act) but in opening the case before me Counsel for the Applicant confirmed that the key issues being pursued could be narrowed to:

I. Whether GSOC acted in breach of its statutory obligations and/or fair procedures in failing to keep the Applicant informed of the progress of his complaint pursuant to s. 103(1) of the 2005 Act;

II. Whether GSOC acted on erroneous and/or incomplete information because GSOC failed to keep the Applicant sufficiently informed; and

III. Whether GSOC erred in law and/or acted in reach of fair procedures/legitimate expectations in the classification and/or allocation of the Applicant's complaint.

76. Of these, the greatest emphasis was placed on the first two which were described as related. The focus in submissions was on the alleged lack of information on progress of the complaint until it was discontinued on the 18th of June, 2024 and the fact that the Applicant was not provided with the report upon which GSOC based its decision to discontinue the Applicant’s complaint.

77. In Opposition papers filed, a preliminary time issue was raised insofar as the Applicant was seeking relief in respect of decisions made more than three months before proceedings were instituted, namely, the decision of the 1st of February, 2024, finding the Applicant’s complaint admissible and insofar as the classification and allocation of the complaint for unsupervised investigation was concerned. The Applicant’s challenge to the refusal to review the classification and allocation of the Applicant’s complaint

pursuant to s. 92(a) of the 2005 Act was said to be out of time as time for challenging the said allocation also ran from the 1st of February, 2024, when that decision was made.

DISCUSSION AND DECISION

78. I have taken time to set out the factual background in the summary provided above. I did this in circumstances where many complaints have been made and have been directed to different people and organisations both simultaneously and over a protracted period of years. This led to a need to bring some clarity to the basis for the Applicant’s grievance underpinning these proceedings. I considered this necessary for two reasons.

Firstly, and most importantly, to assess whether a factual basis for the legal grounds for the challenge the Applicant maintains in these proceedings, has been substantiated to the requisite degree by disentangling the issue the subject of these proceedings from other issues. Secondly, in an endeavour to demonstrate that the courts are not complicit in the type of “cover-up” the Applicant clearly apprehends by being transparent in my

decision-making in this case.

79. Notwithstanding the undoubted value of transparency and the requirements of the administration of justice in public under the Constitution, there is of course a balance to be drawn between transparency and open decision-making and the gratuitous repetition of complaints which are not substantiated in evidence and the merit of which is not established. I have tried to respect this balance in the way I have set out the

factual background in this judgment. By repeating the Applicant’s various and multiple allegations, it should be clear that I should not be taken to accept them as sustainable from an evidential perspective.

80. I was not assisted in trying to understand the basis for and parameters of the Applicant’s grievances by the fact that the Applicant is seeking to re-visit now historic matters where investigations were not pursued for reasons which were clearly explained at the time, namely, lack of evidence and jurisdictional issues. The position is compounded by the fact that notwithstanding that the Applicant has retained solicitors on his behalf, he continues to also correspond personally in respect of the various issues he seeks to agitate.

81. It is further apparent in a replying affidavit sworn by the Applicant on the 7th of March, 2025, that the Applicant conflates his complaint to AGS regarding his original criminal complaint made in 2015 and closed since 2018 (any mishandling of which would be out of time under s. 84 of the 2005 Act absent a basis for extending time), with his complaints to GSOC the subject of the within proceedings which relate to the handling in 2023/2024 of the Applicant’s queries regarding the conduct of the earlier investigations. He deposes (at para. 9):

“my complaint to GSOC all along concerned the handling of the original investigation into my complaint of theft and money laundering. The "two AC reports" are the two reports mentioned above. These averments underline my belief that the Respondent misclassified my complaint and/or misunderstood the serious nature of my complaint.”

82. The underlying theme I detect throughout the Applicant’s correspondence and in these proceedings is that he is dissatisfied with the handling of the complaints he made to AGS in 2015 following his return to Ireland from the U.S., notwithstanding that it is clear, even on his own evidence, that he was advised in a reasoned manner in 2018 that the matter was not being pursued. It appears that this decision was confirmed upon review in 2021. These earlier decisions or the investigations which led to them were not themselves the subject of the complaint to GSOC in October and November, 2023, nor could they be at that remove in view of the 12-month time limit specified under s.

84 of the 2005 Act, certainly in the absence of any basis for an extension of time. It seems, however, reasonably clear that the Applicant is now making complaints about the handling of his previous complaints when at the heart of his grievance lies his unwillingness to accept that no further investigation of his complaints of criminal wrongdoing is proposed based on the evidence submitted to date.

83. It is further clear from the Applicant’s correspondence, whilst pursuing his complaint in relation to the failure to provide him with copies of the two reports the subject of the current complaint to GSOC, that he has made previous complaints to GSOC about different matters. There is a very unhelpful tendency to introduce new and historic issues into correspondence otherwise addressed to an alleged failure to provide two

reports. This lack of focus has relevance here. It has contributed to a lack of clarity which makes it difficult to deal quickly, clearly and comprehensively with his issues and imposes additional burdens on those attempting to deal with the issues he raises. I have no doubt the lack of focus impacts on the ability of AGS to respond to his prolific correspondence as it does on my ability to easily get to the nub of the issues in these proceedings.

84. Based on his affidavit evidence and the material he exhibits, the Applicant evidently suspects wide ranging, systemic collusion and deliberate cover-up regarding his complaints, although the factual basis for this belief is unclear beyond the fact that his complaints have not resulted in action against alleged perpetrators, at least insofar as the complaints presented in 2015 are concerned (whatever about any of the other many complaints referred to in the correspondence exhibited).

85. I refer to this background interaction with the Applicant over the course of some ten years because it is well established that the requirements of fair procedures must depend on the circumstances of the case, the nature of the inquiry, the rules under which the

decision-maker is acting and the subject matter that is being dealt with. There is no universal or bright line rule or standard. The requirements of fairness vary with the circumstances and context.

Preliminary Issue as to Time

86. In this case the application for leave to proceed by way of judicial review was made on the 21st of June, 2024. The decisions sought to be quashed were dated the 1st of February 2024, the 17th of April, 2024 and the 18th of June, 2024. The several decisions of the 1st of February, 2024, were communicated to the Applicant by letter sent by email on that date. From that date, the Applicant was aware both that the complaint had been found admissible and that GSOC had determined to allocate it for unsupervised investigation in accordance with s. 94(1) of the 2005 Act, a decision in respect of which no statutory review lies. The application herein was made more than three months after that date.

87. Order 84, rule 21 of the Rules of the Superior Courts 1986 (as amended) provides, in relevant part:

“(1) An application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose.

(3)Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:-

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule either-

(i) were outside the control of, or

(ii) could not reasonably have been anticipated by the applicant for such extension.

(5)An application for an extension referred to in sub-rule (3) shall be grounded upon an affidavit sworn by or on behalf of the applicant which shall set out the reasons for the applicant’s failure to make the application for leave within the period prescribed by sub-rule (1) and shall verify any facts relied on in support of those reasons ...

88. In commencing proceedings on the 21st of June, 2024, seeking relief in respect of decisions made on the 1st of February, 2024, this application is clearly out of time.

The Applicant was aware of the decisions and the reasons for them on the 1st of February, 2024, when he also instructed his solicitor to write to GSOC about those decisions. It is clear that an extension of time is required if a challenge to decisions made on the 1st of February 2024 is to be permitted. On the 4th of November, 2024 the Applicant was given leave (Bradley J.) to “apply to extend time” and the Applicant seeks in his originating Notice of Motion of the 11th of November, 2024, if necessary, “an extension of time within which to make the instant Application for Judicial Review.” However, the Applicant has not sought to address grounds for such an extension, as such, on Affidavit. Instead, it is contended on behalf of the Applicant that it is clear from the Affidavits that the Applicant was engaging with GSOC in respect of the process through correspondence up until the middle of April, 2024 and that this provides the basis for the order extending time sought.

89. The Supreme Court set out the principles governing an application for an extension of time in M. O'S. v. Residential Institutions Redress Board [2018] IESC 61 (Finlay- Geoghegan J. at para. 60):

“...the jurisdiction which the Court is to exercise on an application to extend time is a discretionary jurisdiction which must be exercised in accordance with the relevant principles in the interests of justice. It clearly requires an applicant to satisfy the Court of the reasons for which the application was not brought both within the time specified in the rule and also during any subsequent period up to the date upon which the application for leave was brought.”

90. The Court of Appeal considered the requirement for reasons on affidavit in Arthropharm (Europe) Ltd v. The Health Products Regulatory Authority [2022] IECA 109 (Murray J.) as follows:

“The effect of the rule is clearly to place an obligation on the party seeking an extension of time to identify on oath the reasons the application was not brought during the period fixed…”

91. Most recently, the Court of Appeal held in Winters v. Legal Aid Board & Ors [2025] IECA 205 (Hyland J., at para. 19) that:

“...the jurisdiction to extend time in judicial review proceedings is now wholly delineated by statute i.e. Order 84, r. 21(3) to (7), and represent a complete code in respect of the extension of time, including the criteria by which applications are to be judged, the procedural manner in which an application is to be made, the relevance of the impact of an extension on third parties and other associated matters.”

92. It is contended on behalf of the Applicant that the simple factual account of engagement on his behalf with GSOC in relation to his dissatisfaction with the classification and allocation of his complaint for unsupervised investigation by GSIO gives rise to a basis on affidavit for granting an extension of time and meets the requirements of Order 84, rule 21(3) and (5) of the Rules of the Superior Courts as explained in M. O'S., Arthropharm (Europe) Ltd and Winters. I cannot agree.

93. In my view, this submission completely ignores the terms of the applicable test which requires more than an account of what was happening during a period of delay. Even if I could somehow extrapolate from the affidavit evidence that this engagement through correspondence constituted “good and sufficient reason” to extend time because GSOC might have been persuaded to review its decision notwithstanding the lack of provision for a review in the statutory framework (which I cannot), nothing whatsoever has been put before me which could justify the exercise of a discretion to extend time by reason of the existence of circumstances outside the control of the Applicant or circumstances that could not reasonably have been anticipated by the Applicant as required by Order 84, rule 21(3)(b)(i) & (ii) of the Rules of the Superior Courts.

94. Before turning to the question of the existence or lack thereof of circumstances outside the control of the Applicant or circumstances that could not reasonably have been anticipated by the Applicant, a further fundamental difficulty presents regarding good and sufficient reason for the extension of time. This fundamental difficulty arises in circumstances where nowhere in his Statement of Grounds does the Applicant identify a legal basis for quashing the admissibility decision and no legal grounds have been advanced for challenging the lawfulness of that decision.

By way of relevant context, s. 228 of the 2024 Act requires that the 2005 Act continues to apply to complaints admitted for investigation before commencement of the 2024 Act. This means that the 2005 Act will continue to apply unless the admissibility decision is quashed, at least in the absence of a challenge the validity of the 2005 or the transitional provisions of the 2024 Acts. It is apparent that the reason the Applicant seeks an order quashing the admissibility decision is not by reference to any unlawfulness in the admissibility decision which, after all, was favourable to the Applicant but because his objective is to seek remittal in a manner which allows for investigation by Fiosrú. My discretion to make a quashing order in respect of the favourable admissibility decision depends on my being satisfied that the decision is legally flawed. As found in Murphy v. GSOC [2021] IECA 26 relief by way of judicial review must be grounded on a sufficient legal frailty in the

decision supported by evidence. In agitating for a remittal to Fiosrú for investigation of his complaint, the Applicant fails to have due regard to the fact that the structure of the 2005 Act, which provides for unsupervised investigation of complaints by GSIO, reflects policy choices made by the Oireachtas in legislation which policy choices cannot be impugned without in a challenge to the 2005 Act itself. No such challenge is made in these proceedings.

95. As no inherent legal defect with the admissibility decision itself has been identified or pleaded, there is no basis upon which a court could be persuaded to quash that

decision and no challenge is taken in respect of the statutory provisions governing the conduct of investigations, it follows that this matter could never be remitted by me for investigation by Fiosrú in these proceedings as currently constituted.

96. Even if I were to extend time to permit the Applicant to apply for a quashing of the admissibility decision, notwithstanding that the challenge is out of time, the matter could not return to a pre-admissibility determination stage such that it would be subject to the 2024 Act as there is no pleaded basis for making such a quashing order. In the circumstances, I cannot conclude that there exists a “good and sufficient reason” for extending time as maintaining a claim for this relief is futile in the absence of an identified and pleaded legal frailty with the decision sought to be challenged for which leave has been granted.

97. Independently of the lack of “good and sufficient reason” to extend time to challenge the admissibility decision, I am also satisfied that engaging in correspondence seeking a non-statutory review of a decision already communicated, does not give rise to circumstances outside the control of the Applicant or circumstances that could not reasonably have been anticipated by the Applicant. It bears note that this correspondence did not seek to revisit the admissibility decision and so cannot account for a time issue arising in this regard.

It further bears note that correspondence concluded with a letter from GSOC dated the 17th of April, 2024, standing over its earlier decision. The Applicant would have

still been in time to bring proceedings in respect of decisions made on the 1 st of February, 2024, up to the end of April, 2024 and has not given any explanation at all for a failure to do so. I am not satisfied to exercise a discretion to extend time in these circumstances as the test which guides the exercise of my discretion has not been met.

98. The admissibility decision was not the only decision made on the 1st of February, 2024.

The Applicant also seeks to challenge the “classification and allocation” of his complaint as suitable for unsupervised investigation. This decision was, however, taken in accordance with the statutory provisions. While GSOC had a power to investigate the complaint itself under ss. 95 and/or 98 of the 2005 Act, it was entirely within its discretion to refer a complaint concerning a neglect of duty for investigation under s. 94 of the 2005 Act. Although the decision to classify his complaint as a minor service complaint is described as an “erroneous classification,” a quashing order is not sought in respect of the classification and allocation decision made on the 1st of February, 2024. While the Applicant contends that he should have been consulted in relation to the classification of the complaint for investigation, no proper legal basis for impugning the classification

decision is disclosed in the grounds for which leave has been granted. Notably, the pleaded grounds do not comprise a challenge to the statutory scheme itself which vests GSOC with a discretion in relation to the allocation of complaints for investigation (acknowledged by the Court of Appeal in Murphy v. GSOC [2021] IECA 26 to be a matter of policy for the Oireachtas in the absence of any challenge to the 2005 Act itself).

99. In an implicit acknowledgement of the time issues which arises, in his pleaded case, the Applicant elects to treat the decision to classify and allocate as a decision which was only final when GSOC confirmed that it would not be reviewed in its letter of the 17th of April, 2024. It is this decision which it is sought to quash in the present proceedings. I have difficulties with the claim made for this relief. As set out in the GSOC's letter of the 17th of April, 2024:

“there is no statutory right to a review of the decision-making process regarding the admissibility of any complaint made to GSOC.”

100. The Applicant has not identified any such statutory right, and indeed states in his Statement of Grounds that there is no such provision. The Applicant should, therefore, have applied for judicial review of the decisions of the 1st of February 2024, without delay and within three months, and should not be permitted to artificially extend the time for review of those decisions based on his election to engage in correspondence. The Applicant was immediately notified of the decisions made on the 1st of February, 2024. His election to engage in fruitless correspondence does not provide the basis for extending time on the facts of this case.

101. I am satisfied that in seeking to quash the decision to refuse to review the classification and allocation decision communicated by letter dated the 17 th of April, 2024, the Applicant is engaged in an improper attempt which amounts to a collateral challenge to the decision previously communicated on the 1st of February, 2024 and stood over in intervening correspondence. In my view, he does so to circumvent the expiry of the time for review of the decisions of the 1st of February, 2024 and relief should be refused on that basis as he is clearly out of time. In this regard, it is again noteworthy that the Applicant was advised of the refusal to entertain his request before the expiry of three months by correspondence on the 17th of April, 2024 and could still at that time have issued proceedings within time challenging that decision. He did not do so and cannot be permitted, through contrivance, to treat the subsequent correspondence confirming a standing decision on his application as a fresh decision.

102. The Applicant is out of time to challenge the decisions (both as to admissibility and classification and allocation for investigation) made on the 1st of February, 2024. He has not established an entitlement to an extension of time. No new

decision was made on the 17th of April, 2024 and the Applicant’s challenge directed to this decision constitutes an impermissible bring a collateral attack to a decision made on the 1st of February, 2024, within time.

103. I would add that to the extent that the underlying merit of legal grounds bears on

the exercise of a discretion to extend time, this is a factor which also leans against the exercise of a discretion to extend time. I am satisfied that extending time to permit a challenge to a classification and allocation decision confirmed by letter of the 17th of April, 2024, would not avail the Applicant in circumstances where I see no proper basis for a challenge to the classification of the complaint and its allocation for investigation under s. 94 on the case as pleaded. Although the Applicant refers to an obligation on the State to provide an effective and impartial complaints system, he does not identify any basis for contending that the classification and allocation for investigation is otherwise than in accordance with the 2005 Act and intra vires that Act nor challenge to the 2005 Act as unlawful for not requiring investigation of the subject complaint other than through a Garda disciplinary process. The fact that the Applicant protests that he has no faith in the effectiveness or accountability of investigations into conduct of members of the Gardaí carried out as part of the Garda disciplinary process does not provide a legal basis for finding the investigation regime established under the 2005 Act and operated in this case ultra vires the powers of GSOC or otherwise unlawful (applying Murphy v. GSOC & Ors.).

104. In consequence of my decision on the time issue and my conclusion that no new

decision was made on the 17th of April, 2024, the lack of any apparent legal merit in elements of the case as pleaded together concessions made in the submissions, these proceedings now turn on a relatively net issue.

105. It seems to me that the only issue which is open on the case as pleaded and having regard to time issues relates to the communication of the decision to discontinue on the 17th of June, 2024 and whether there was compliance with the requirements of s. 103 of the 2005 Act and fair procedures by reason of the failure to communicate with the Applicant in advance of the decision to discontinue the investigation of his complaint the results of the GSIO investigation, the implication being that appraised of the outcome of the investigation, he should have been afforded an opportunity to put more information before GSOC which could have been considered in its decision to discontinue the investigation.

Section 103 Complaint and Lack of Notice of GSIO Investigation Result

106. In advancing the complaint under this head, it was submitted on behalf of the Applicant that he was not kept informed on the progress of his complaint until he was told suddenly that his complaint had been discontinued. Importance was attached to the fact that the GSIO report upon which GSOC decided to discontinue his complaint was not furnished to him nor was he invited to comment on that report or the fact that discontinuance of his complaint was in contemplation.

107. It is relevant to position the Applicant’s complaint regarding a lack of fair procedures and non-compliance with s. 103 of the 2005 Act in its correct statutory context. This was unsupervised investigation under s. 94(1) and accordingly a matter which it had been decided by GSOC fell to be investigated as an internal Garda disciplinary matter.

Section 94 of the 2005 Act, set out in full above, governs what happens when GSOC refers a complaint to the Garda Commissioner for investigation under the Discipline Regulations. Upon referral, the Garda Commissioner must appoint a Garda member to investigate the complaint in accordance the Discipline Regulations. The appointed member must not have been involved in any previous aspect of the case, a safeguard in respect of independence.

108. What is manifestly clear from the statutory scheme as applied in the Applicant’s case is that GSOC’s role is limited. GSOC can require that no appointment is made without its prior approval of the proposed investigator. GSOC may decide to supervise the investigation if it considers it desirable in the public interest (but it did not do so in this case). Where it does so, GSOC must notify the Garda Commissioner of its intention to supervise. If supervising, GSOC can: require progress updates and interim reports;

have a designated officer present during interviews and direct further investigation into any aspect of the complaint. The appointed investigator must submit a final report to GSOC within the time specified. GSOC reviews the report and if it finds a disciplinary breach, it issues a report under s. 97 to the Garda Commissioner but it remains a matter for the Garda Commissioner to pursue disciplinary proceedings. If it suspects a criminal offence, GSOC can: direct a designated officer to investigate under s. 98 or proceed under s. 101 (referral for prosecution).

109. It is also recalled that GSOC did not decide to supervise the investigation in this instance and a decision to do so would have required GSOC to be satisfied that there was a public interest in so doing. The challenge to GSOC’s classification and allocation of the complaint for unsupervised investigation is out of time and this decision stands as a valid and lawful decision.

110. Where the investigation is unsupervised, as in this case, s. 94(9) of the 2005 Act requires only that the results of either any disciplinary process or investigation be communicated to GSOC, the Complainant and the member of the AGS whose conduct was under investigation and, if appropriate, any proposed action. In the case of an unsupervised investigation, there is no statutory requirement for a report to be submitted to GSOC or provided to the Complainant or the person subject to the complaint. This is to be contrasted with the position in respect of a supervised investigation where, pursuant to s. 94(6) of the 2005 Act, a report must be furnished to GSOC (but not the complainant or the person subject to complaint). Accordingly, under the statutory scheme, which is not challenged in these proceedings, GSOC was not entitled as of statutory right to receive a copy of the GSIO report, still less obliged to furnish a copy to the Applicant.

111. As set out above, under the statutory scheme, in the case of an unsupervised investigation under s. 94 of the kind at issue in these proceedings, GSOC’s role is limited to receiving the results of any disciplinary proceedings instituted following the investigation or, if no such proceedings are instituted, of the results of the investigation, and if appropriate, any action that the Garda Commissioner proposes to take in relation to that member. Decision-making in respect of internal Garda disciplinary matters lie with the AGS under the 2005 Act and the Discipline Regulations.

112. The specific statutory duty to notify the Applicant of the results of the GSIO investigation conducted under the Discipline Regulations lies on AGS and not GSOC (in accordance with s. 94(9) of the 2005 Act). The duty under s. 94(9) is limited to a requirement to notify of the result. There is no statutory requirement on the AGS to provide a copy of the report. Despite the fact that an express duty to notify the result of the investigation lies on AGS, no relief is claimed against the AGS and the Garda Commissioner has been joined only as a Notice Party to these proceedings.

113. In terms of GSOC’s position at this stage (receipt of an investigation report in respect of an investigation under s. 94(1)), it has a power to review the matter under s. 94(10)

if requested to do so (but no request for a review was ever made in this case), or, a residual power to take over the investigation under s. 94(12) or, as occurred in this case, to exercise powers to discontinue under s. 93(1)(c) of the 2005 Act.

114. This is the legal context for the Applicant’s complaint expressed at para. 17 of Replying Affidavit sworn on the 7th of March, 2025 as follows:

“I ought to have been provided with a summary of the findings contained in the GSIO report, or same ought to have been provided to me in redacted form with privilege asserted where appropriate and for good reasons. The failure to keep me informed on the steps taken by the Respondent leading up to the ultimate

decision led to the omission of the emails referenced above.”

115. It is unclear if the Applicant requested a copy of the GSIO report from AGS upon notification of the results of the investigation in accordance with s. 94(9) of the 2005 Act. If for some reason that notification had not yet occurred when GSOC made its

decision to discontinue, then if the Applicant really considered that he ought to have been provided with a summary of the findings contained in the GSIO report beyond what was communicated in the decision letter of the 18th of June, 2024, it is curious that he did not request a copy of the report before bringing an application by way of judicial review.

116. While it is more than probable that a request for the GSIO report would have been refused, not least given the confirmed GSOC policy in this regard, the Applicant might have been provided with a redacted version of the GSOC consideration document exhibited in the context of these proceedings which shows the systematic approach taken to the assessment of the report, if not all of the details contained in the report or had a request been addressed to AGS.

117. It is accepted that in addition to the duty on the AGS under s. 94(9) in the case of an unsupervised investigation, there is a separate duty on GSOC under s. 103 of the 2005

Act where a duty to keep a complainant sufficiently informed on the progress of their complaint is clearly prescribed. It is not in dispute that this is a mandatory duty imposed denoted by the use of the word “shall” in s. 103 (1) of the 2005 Act (see Minister for Labour v. Grace [1993] 2 I.R. 53 and McD v. Minister for Education & Science & Ors.

[2008] IEHC 265). While the GSOC accepts that s. 103(1) imposes a mandatory duty on it, it does not accept the extent of that duty contended for by the Applicant contending that it has fully discharged its obligations under s. 103(1). It is submitted that s. 103(1) is an expression of the requirements of fair procedures but it is further submitted that the Applicant is also entitled to information in discharge of the requirements of fair procedures.

118. In opposing these proceedings GSOC identifies a number of critical points in an unsupervised investigation pursuant to s. 94 as being:

a. the admissibility decision;

b. the fact that the complaint is being referred for an unsupervised investigation;

c. the appointment of a GSIO (and of any alternative or replacement GSIO);

d. any request for an extension of time by the GSIO for their investigation;

e. any request for further information received from the GSIO;

f. any other significant procedural point in the complaint and investigation procedure or any matter likely to cause delay;

g. the outcome of the investigation, including any decision to discontinue the matter.

119. On behalf of GSOC, it is pointed out that the Applicant was notified of points a. and b. by the letter of 1st of February, 2024. He was further notified of point c. by the letter of the 19th of February, 2024. As the investigation was completed within the timeframe of 16 weeks, point d. did not arise. Similarly, points e. and f. did not arise in this matter. Independently of any notification by the AGS under s. 94(9) of the 2005 Act, the Applicant was notified on behalf of GSOC of point g. by the letter of the 18th of June, 2024. On behalf of GSOC it is further deposed that its’ “universal practice” in s. 94 investigations that GSIO reports are not disclosed to complainants, or to any other party, on the grounds that disclosure could jeopardise the effective functioning of the GSOC in receiving and investigating complaints made against members of AGS , could also jeopardise AGS’s investigative effectiveness, having regard to ss. 81 and 103(2) of the 2005 Act.

120. In construing the obligation under s. 103(1) of the 2005 Act it is appropriate to first consider the words in their statutory context. From the words used, the obligation is not an onerous one and is limited to information in relation to the “progress and results.” There is nothing to suggest that the burden on GSOC is any greater than the burden on the AGS under s. 94(9) to communicate the result of an unsupervised investigation and indeed, it would be strange that in requiring communication of the result of the investigation a broader meaning would be given to “results” of the investigation under s. 103(1) to that given under s. 94(9). Notably, in providing for a requirement to communicate results, the Oireachtas did not require provision of a report or even the communication of reasons for the results. This contrasts with other provisions in the 2005 Act where reasons in writing are required, for example, in s. 88(1)(b) in respect of an inadmissibility decision and in s. 93(2) in respect of the decision to discontinue.

121. In addition, ss. 81 and 103(2) of the 2005 Act recognise the requirement to respect confidentiality and public interest privilege in the disclosure of information. This bears on the interpretation of a duty to provide information as to results under s. 103(1)

because the duty prescribed does not extend to a duty to provide information which could jeopardise the effective function of the GSOC in receiving and investigating complaints or the effectiveness of its investigations. Section 103(2) expressly provides that the obligation to provide information does not require the disclosure of information which would not be in the public interest.

122. It is GSOC’s position that disclosure of the GSIO report would never be in the public interest because it could jeopardise the effective functioning of GSOC in receiving and investigating complaints and could also jeopardise Garda Síochána investigative

effectiveness. Potential public interest privilege arising in an investigation by GSOC was recognised in McEvoy v. GSOC [2015] IEHC 203 on an application for discovery by a Garda member subject to investigation by GSOC. It was acknowledged in the McEvoy decision that in many cases it would be impossible for GSOC to conduct its affairs, receive complaints or carry out effective investigations without being able to assure the complainants and/or witnesses of confidentiality in appropriate circumstances. This being the case, it must follow that properly construed, s. 103(1)

does not extend to require disclosure of an investigation report. Instead, it prescribes a duty to provide information which is minimalist as to extent of information which must be provided and is discharged, insofar as a duty to provide the results of investigation, by a communication of the outcome of the investigation. Viewed in terms of the scope of the duty under s. 103, the universal practice deposed to on behalf of GSOC is not properly conceived of as a fettering of discretion but rather an application of its correct interpretation of the breadth of the duty on it.

123. Unlike the position in cases such as McCarron v. Kearney [2010] IESC 28, [2010] 3 I.R. 302 where the exercise of a discretion is conditioned by statutory criteria such that it is unlawful to introduce additional conditionality as if it were a further statutory condition, in this case the GSOC practice is informed by the statutory limits on the requirement to provide information when viewed in the context of other duties on it to receive complaints and carry out effective investigations in discharge its functions under s. 67 and in exercise of its statutory powers under Part 4 of the 2005 Act, particularly in view of provision made in s. 81 for the confidentiality of information obtained by GSOC.

124. I have concluded that the duty under s. 103(1) manifestly does not require the disclosure of GSIO reports and there is no obligation to furnish an investigation report to a complaint in discharge of a duty to keep a complaint informed of the results of investigation under s. 103(1) of the 2005 Act. This duty was discharged by the terms of the letter advising of the results of the investigation on the 18th of June, 2024.

125. The fact that s. 103(1) of the 2005 Act does not mandate the disclosure of the investigation report does not mean that there are no further obligations on GSOC arising as a matter of fair procedures when it contemplates exercising a power to

discontinue under s. 93(1)(c) of the 2005 Act. It is well established that a failure to prescribe a fair procedure or a legislative lacuna as to the procedures to be followed, does not excuse a decision maker from ensuring that a decision is not tainted by unfairness in the decision-making process. The constitutional obligation to abide by fair procedures requires the decision maker to “create and carry out procedures”

which are fair and respect the substance of the constitutional guarantee (see O'Brien v. Bord na Móna [1982] IESC 1, [1983] I.R. 255, per Finlay P.). As observed by Collins J. in his judgment for the Court of Appeal in Murphy v. GSOC & Ors., the design of the mechanism to make available an effective Garda complaints mechanism that commands public confidence is, in the first instance, a matter for the Oireachtas but, whatever its structure (at para. 76):

“it must operate fairly and in accordance with applicable principles of natural and constitutional justice.”

126. While I am quite satisfied that the duty to inform of the progress and results of an investigation can be discharged in every case without any necessity to provide the GSIO report or a detailed précis of its contents, there may well be circumstances (more likely involving a garda member under investigation under the 2005 Act) where fair procedures will require a higher degree of information than might otherwise be mandated by s. 103(1) having regard to the requirements of constitutional fair procedures, most obviously in cases embracing rights of defence (where a member is under investigation). The Court may intervene if satisfied that the decision-making process has been rendered unfair because insufficient information has been provided and the process followed failed to strike a proper balance between the interest sought to be protected and the rights of the individual affected by the

decision-making process.

127. The starting point in the assessment of what fairness demands in each situation is rooted in the factual and legal context. In this case, the Applicant is not subject to a disciplinary process and while he has some interest in the outcome of the complaint process, his only vested right is the right to make a complaint and have

that complaint processed in accordance with the statutory scheme. As he is not in personal jeopardy in this process, his rights to constitutional justice are tailored restrictively in view of the limited potential consequences for him of any decision which may be made. This does not mean that he has no rights in the process.

Indeed, the Oireachtas have prescribed that where an investigation is discontinued by GSOC under s. 93, he is entitled to know the reasons for this decision. The Oireachtas have not required, however, that he be afforded a right to notice that discontinuance is in contemplation so that he can make submissions addressed to the exercise of that power. This means if there is a duty to provide information in relation to a recommendation to discontinue contained in an investigation report before proceeding to take that decision, it can only arise if it is required as an incident of constitutionally protected fair procedures as it has not been prescribed by statute.

128. Recalling that the requirements of fairness are fact and circumstance specific, none of the authorities cited support the extension of a duty of fairness warranting a requirement to disclose the GSIO report or a précis of its contents to the Complainant before deciding to discontinue under s. 93 of the 2005 Act. In this regard, the Applicant’s reliance on cases such as P. & F. Sharpe Ltd v. Dublin City and Council Manager [1989] I.R. 701 and Burke v. Minister for Education [2022] IESC 1 is misplaced. These cases are authority for the well-established proposition that a person affected as to a decision where there is a protected right “is entitled to” some notice of what, very loosely and not importing criminal procedures, may be stated as “the charge against him” or her. Fairness necessitates that such person “be given an opportunity to answer it and to make submissions.” In Burke, in addressing “the minimum standard”

(at para. 122 of the judgement), Charleton J. was considering a decision involving a “protected right” in cases where an investigation involves a public declaration of wrongdoing. Even then, as Charleton J. observed, only very rarely, if ever, are full rights of information or charge or notice of what is wrong, necessary.

129. What the Applicant overlooks in submissions advanced in reliance on authorities such as Burke is that there is no charge against him and he does not stand accused of any wrongdoing which might be publicly criticised by GSOC. His only right, protected insofar as it is provided for under the 2005 Act, is to make a complaint and to expect the complaint to be investigated in accordance with the provisions of the 2005 Act, including provisions allowing for discontinuance and in accordance with the requirements of fair procedures.

The requirements of fair procedures, however, vary depending on the circumstances and the consequences for an individual. Crucially, the rights of a complainant in a Garda disciplinary process are not equivalent to the rights of the Garda member whose conduct is under investigation. The role of complainant is more akin to that of a witness. This does not mean he has no rights, but what fairness requires is significantly attenuated in the case of a complainant in a disciplinary process of the kind at issue in these proceedings.

130. The case cited in argument before me most directly on point in this regard is Lidl Ireland GMBH v. Chartered Accountants I reland [2021] IECA 26 in which the High Court considered the fair procedure rights of a complainant in the context of a decision of a disciplinary body that a complaint did not warrant a full disciplinary hearing. In his decision, Ferriter J. observed (at para. 78) that it is well established the subjects of complaints do not enjoy the full panoply of rights in the preliminary screening phase of a disciplinary process (see in this regard Law Society v. Walker [2006] IEHC 387, [2007] 3 I.R. 581, Flynn v. Medical Council [2012] IEHC 477, [2012] 3 I.R. 236 and B.M. v. Fitness to Practice Committee of the Medical Council [2019] IEHC 106) and that the role of a complainant at that stage:

“is more limited again and it follows that its procedural rights are necessarily more limited.”

131. In his judgment, Ferriter J. noted that (at para. 79):

“as a matter of sensible legal policy, that the complainant does not have a right to be furnished with information, evidence, documentation and representations furnished by or on behalf of the member who is the subject of a complaint and to make representations on such material. The complainant is not being accused of any wrongdoing. The complainant does not enjoy some form of supervisory or monitoring role in relation to how CAI or its disciplinary bodies conduct inquiries or investigations into other parties at the preliminary screening phase. It has no right to dictate how the disciplinary bodies conduct their investigations.”

and that (at para. 88):

“While it would have been entitled to direct the CAI executive to conduct further investigations or indeed to direct the raising of further queries with the complainant, it had no obligation to do so.”

132. By analogy, a complainant has no right to expect an investigator to exhaustively seek documents from them, and if they wish an investigator to consider material, they should pro-actively provide it. Likewise, a complainant does not normally have a right to be furnished with material generated in the investigation of the complaint. Where, as in this case, a right to a reasoned decision taken to discontinue an investigation on the basis of information obtained since the complaint was found admissible, has been provided for, then the requirement is met where sufficient information is provided to enable all addressees to understand in broad terms why the decision was taken and to enable them to assess whether the

decision was lawful (dicta at para. 97 of Lidl Ireland GMBH v. Chartered Accountants lreland applied).

133. Based on the decision in Lidl Ireland GMBH v. Chartered Accountants lreland, I am satisfied that on the facts of this case, the failure to provide the GSIO report or a summary in advance of the decision to discontinue is not a breach of the requirements of fair procedures so long as the basis for the decision is explained in broad terms in discharge of obligations under s. 93(2) of the 2005 Act having regard to the curtailed and particular role of the Complainant in the process and the circumstances of this case.

134. While the Applicant cannot assert an entitlement to receive the GSIO report, he is entitled pursuant to s. 93(2) of the 2005 Act, to be given sufficient information to understand broadly why the decision to discontinue was taken. In construing the breadth of this duty in light of the requirements of fair procedures, regard must be had to the nature of the process. In his capacity as complainant triggering an investigation of Garda activity rather than the respondent to a complaint, the requirements of fair procedures vis à vis the Applicant are attenuated. Although, GSOC referred in submissions to the decision of the Court of Appeal in Murphy v. GSOC & Ors (at para. 68) where it was noted that the decision of the Supreme Court in Flood v. The Garda Síochána Complaints Board [1999] IESC 56, [1999] 4 I.R. 560, relating to a previous statutory regime, directly contradicted any argument that in carrying out an investigation into a complaint under the 2007 Regulations, a deciding officer (i.e. a GSIO) is obliged to inform the complainant of who else they have interviewed and what those persons have said in their statements and/or give the complainant a right of response to those statements, it was acknowledged before me that care is required in relying on these older decisions now in view of more recent jurisprudence and the difference in statutory regime. Accordingly, while the Court of Appeal in Murphy v. GSOC noted that these authorities appeared to be to the effect that a GSIO was not obliged to give reasons for their decision, it was accepted on behalf of GSOC before me that the law on the duty to give reasons has developed since the decisions in McCormack and Flood.

135. Having regard to these developments, however, and noting the obligations under s.

93(2) of the 2005 Act, it is in my view that any requirement to give reasons to a complainant for discontinuing a complaint in relation to a disciplinary allegation is generally discharged by a brief, non-discursive summary of the basis for the decision sufficient to allow the complainant to understand why in broad terms the decision to discontinue has been taken and to assess the lawfulness of that decision.

136. In this case the Applicant was provided with a statement of reasons in the decision letter of the 18th of June, 2024, informing the Applicant of the decision to discontinue the investigation on the basis that further investigation is not necessary or reasonably practicable as the threshold for a breach of discipline had not been met. The reasons given in the letter of the 18th of June, 2024 for the decision to discontinue (see para. 48 above) are clearly addressed to the terms of the admitted complaint and, in my view, adequately explain that decision.

137. I am satisfied that in the context of the decision in question, the reasons for the

decision are sufficiently set out and there is no want of fairness in this regard. By informing the Applicant of the result of the investigation, namely discontinuance for

reasons given in the letter of the 18th of June, 2024, the obligations under ss. 103 and 93(2) are discharged.

138. If I am wrong in my conclusion that there is no requirement to provide further information in relation to the GSIO report in advance of the decision to discontinue or in the context of the decision to discontinue, I am nonetheless satisfied that the failure to provide the GSIO report or a summary in advance of the decision to discontinue could only ever trigger a right to notice of its contents if there is an established basis for contending that reliance was placed on a factor which the Applicant had no opportunity to address in the process leading up to the decision and which, had an opportunity been afforded, might have resulted in a different outcome.

139. In this regard, the Applicant places emphasis on the fact that GSOC was unaware of the correspondence with Superintendent Deely relied upon as constituting a commitment to provide copy reports which had not been honoured. The logic of the position adopted on behalf of the Applicant is that had they been aware that GSOC did not have sight of this correspondence, it could have provided it and in the face of this correspondence GSOC would not have reached a conclusion that the Applicant’s request for the reports had been satisfactorily addressed and accordingly, this correspondence could have had a material bearing on the decision reached.

140. While there are significant redactions in the consideration document such that much of what is said is unintelligible, a summary is given at the end of the consideration document which has been disclosed in the context of these proceedings and could potentially have been disclosed were request made to GSOC in advance of proceedings for an elaboration on the basis for the decision.

141. A comparison between the terms of the decision letter dated the 18th of June, 2024, with the summary of the GSIO report provided in the consideration document approving the recommendation to discontinue shows that the reasons for discontinuing set out in terms of the letter from GSOC dated the 18th of June, 2024, do not completely align with the summary provided in the consideration document. In particular, reference is made in the redacted consideration document to the fact that statements of complaint have not been made in certain instances by the Applicant despite request and decisions not to prosecute have been made and communicated to him. These are factors relating more to the substance of the complaints made to the AGS which it was alleged had not been responded to in the referral of a complaint to GSOC.

142. The fact that there is some difference between the information disclosed in the consideration document when compared with the reasons for the decision to discontinue as communicated does not necessarily suggest to me a failure to adequately set out the reasons in the decision letter. The reasons for the decision to discontinue the complaint under investigation under the 2005 Act were given but, as clear from the consideration document the decision was made in circumstances where GSOC could also be satisfied that the Applicant understood that decisions not to prosecute had been made as these decisions had been communicated to him. While this was not spelt out in the letter communicating the decision to discontinue the investigation because the complaint under investigation was addressed to a failure to respond to correspondence and disclose reports rather than a failure to investigate, it is not new information from the Applicant’s perspective. He knew decisions not to prosecute have been made. He refuses to accept these decisions.

143. I conclude, therefore, insofar as it is contended that the decision was based on “incomplete information”, the first thing to note is that it does not appear as a legal ground of challenge for which leave has been granted. In argument, counsel on behalf of the Applicant contended that the arguments she makes in this regard flow from the complaint made that there has been a breach of s. 103 and the requirements of fair procedures by the failure to inform the Applicant that the GSIO report had been received and to provide him with a copy of it.

144. I accept that a clear case has been made that the process was flawed for want of fairness because the Applicant was not afforded an opportunity to address the GSIO report before GSOC discontinued its investigation. While the claim now advanced that the decision was made on the basis of incomplete information is not part of the case as pleaded, there is a connection between not providing the report and a risk of a decision being made on foot of that report without the benefit of information which might have been provided if notice of the terms of the report had been provided.

145. Given this link, I propose to consider whether the failure to put the Applicant on notice of the basis for the GSIO recommendation resulted in a demonstrable unfairness in the process because relevant information was not considered, even though it is questionable whether it is properly a matter upon which this court should adjudicate as the parameters of this case are set by the terms of the order granting leave (A.P. v. D.P.P.

[2011] IESC 2, [2011] 1 I.R. 729 and Murphy v. GSOC & Ors. ). I take this approach partly because it only became clear during these proceedings that GSOC did not have sight of the exchange of correspondence with Superintendent Deely in relation to what the Applicant characterizes as a commitment to provide the two reports before approving the decision to discontinue but primarily because there is a clear complaint of failure to provide sufficient information regarding the contents of the GSIO report made within the pleadings. It seems to me that the purpose of making such a complaint was likely a concern to ensure that a decision is made based on complete information thereby creating some nexus with the case as pleaded and the grounds upon which leave was granted.

146. It is noteworthy in terms of the merit of the argument the Applicant seeks to belatedly make in this regard that notwithstanding the terms of the letter dated the 18th of June, 2024, communicating the results of the investigation, the decision to discontinue the investigation together with the outline reasons for this decision and despite having sight of the redacted consideration document in support of the GSOC’s decision to discontinue on foot of receipt of the GSIO investigation report, the only matter which the Applicant identifies as a matter upon which he could have offered additional information is the omission of the emails from Superintendent Deely. It follows that he does not dispute the other factual matters recited in the summary provided in the redacted GSOC decision document, namely, that he was asked to provide statements of complaint but did not do so in certain instances and that decisions not to prosecute had been made and communicated to him (indeed, he admits as much on affidavit grounding these proceedings).

147. Although the Applicant points to the fact that GSOC had no knowledge of Superintendent Deely’s emails, relied upon as an assurance that a report would be furnished, and therefore based their decision on what he claims is “incomplete information” and complains that GSOC did not clarify with him at any stage the source for his belief that he was promised these reports, these claims do not withstand any interrogation and do not take account of four salient facts.

148. Firstly, GSOC was aware that the Applicant had been invited to provide the documentation he relied upon to ground his belief that an assurance had been given that the reports would be provided by AGS because correspondence requesting that he do so because this correspondence was appended to the GSIO report. GSOC were correct in observing that there was no evidence that the Applicant ever responded to this request. It has indeed been confirmed by the Applicant that he did not respond to correspondence received from the Assistant Commissioner’s office making this request, although he seeks to excuse his failure to respond with reference to the existence of a GSOC investigation.

149. Secondly, and in any event, it is clear from the letter from the Assistant Commissioner dated the 28th of February, 2024, that enquiries carried out showed that the Applicant was informed that “a‘report’ was being sought on the issue” but that “any such reference to a ‘report’ would generally be referencing internal Garda correspondence”.

This letter, accurately reflecting the terms of the correspondence the Applicant seeks to rely upon, was part of the GSIO report and accordingly, accurate information concerning the letters, if not the letters themselves, was available to GSOC in making its decision to discontinue.

150. Thirdly, the Applicant never provided the correspondence in question to GSOC when presenting his complaint for investigation or subsequently. He cannot complain then if a decision is taken without regard to correspondence which he has not provided in support of his complaint, if he considered it important. The fact that regard was not had by GSOC to the precise terms of the correspondence the Applicant relied upon cannot therefore be divorced from the fact that the Applicant did not provide it, despite request, as part of the investigation of his complaint to the Assistant Commissioner. Although the Applicant seeks to explain his non-reply on affidavit filed after the hearing before me had concluded for his failure to provide this information to the Assistant Commissioner, namely a concern about interference with an ongoing investigation admitted by GSOC, this explanation is inconsistent with the approach taken on the

Applicant’s behalf in responding to other correspondence from the Assistant Commissioner after the admission of the Applicant’s complaint by GSOC, notably the letter of the 12th of February, 2024, in response to a letter from the Assistant Commissioner dated the 6th of February, 2024. I find the explanation offered for the Applicant’s lack of response unconvincing and his position in this regard disingenuous.

151. Fourthly, on a proper reading of the correspondence to which the Applicant attaches such importance in argument before me, it is quite clear that the Applicant was never advised that he would be provided with a copy of a report in respect of the subject matter of his complaints when received. The correspondence is clear and unambiguous in its terms in advising the Applicant that upon receipt of the two reports which had been sought, there would be further contact with him. It was never suggested that the reports would be simply provided to him. Thus, had the correspondence been provided to GSOC either because the Applicant responded to the Assistant Commissioner’s letter or on foot of direct engagement with the Applicant following receipt of the GSIO report and before recommending discontinuance of the complaint, it could not have affected the conclusion reached that there was no evidence that AGS had committed to provide the Applicant with copies because the letters in question do not provide evidence of any such assurance.

152. I am satisfied that the GSOC’s decision of the 18th June, 2024 was made in accordance with s. 93(1)(c) of the 2005 Act and the relevant provisions of the Memorandum between GSOC and AGS , and having regard to the GSIO’s report, the clarification provided by the GSIO on the 17th of June, 2024, and documents referred to therein, including but not limited to the email of the 28th of November, 2023, from Superintendent Deely (on behalf of the Office of Deputy Commissioner Policing & Security) to the Applicant and his solicitor (referring to the failure of the Applicant to make a detailed statement and the communication of a decision in March, 2018, that there was no evidence to merit criminal investigation regarding his complaint of fraud/money laundering in this jurisdiction concerning a Russian oligarch, which decision was subsequently confirmed following a review by the Garda National Economic Crime Bureau in September, 2021) and the letter of the 28th of February, 2024, from Assistant Commissioner (Governance & Accountability) to the Applicant's solicitors (seeking the correspondence relied upon as giving rise to an assurance that reports would be provided).

153. There is no requirement in s. 93(1)(c), or elsewhere, for GSOC to consult with a complainant before discontinuing the investigation of their complaint. This is not to say that on the facts of a given case GSOC might consider it necessary to do so in the circumstances of a given case if the factual position remains ambiguous following receipt of the GSIO report in some material way. There may even be circumstances in which a court could be persuaded that the requirements of fairness in the case were such as would require notice of a point raised and an opportunity to respond. This is not such a case, particularly when regard is had to the fact, as clearly communicated in the decision letter, that it would not be Garda procedure to disclose operational Garda reports to members of the public.

154. The fact that it is accepted that it would not be Garda procedure to disclose operational Garda reports to members of the public makes it very difficult to see how a failure to do so could ever constitute misconduct warranting disciplinary sanction and solidly supports the conclusion arrived at that further investigation was not necessary or reasonably practicable under s. 93(1)(c) of the 2005 Act.

155. Although the Applicant protests still that he never received a response in respect of the complaints in 2023, this is patently not true (with particular reference to the letters of the 28th of November, 2023, from the Deputy Commissioner and the 28th of February, 2024, from the Assistant Commissioner but also the multiple letters telling him that he would be contacted upon receipt of a report).

156. In terms of the discretionary remedy of judicial review, when considering proceedings in which the issue is the treatment of a complaint of a failure to reply to new correspondence where there is a background of engagement, I am satisfied that it is appropriate to take into account the Applicant’s previous engagement in respect of his complaints and the decisions communicated in 2018 and again in 2021 advising as to the reasons for non-investigation).

157. Complaint processes of the type established under the 2005 Act should not be used to hold decision-makers to exaggerated standards in terms of replying to repeat correspondence. In real life terms, past communication may be relied upon as discharging an obligation to respond in respect of repeat correspondence where the complaints made are really an attempt to re-open a previously communicated

decision. In this case, GSIO and GSOC were entitled to have regard to the fact that a decision was taken in 2018 and confirmed in 2021 in circumstances where the Applicant was clearly told that the investigation was not being pursued for stated reasons when deciding that there was no basis for a complaint of neglect of duty in the responses provided to the Applicant.

158. The Applicant was never told that a report would be furnished to him but rather that he would be contacted in response to his complaints when a report was received. He was, in fact, contacted in relation to his complaints in November, 2023, when the Deputy Commissioner explained the position again as being that the investigation of his original complaint had ceased due to a deficiency of evidence and jurisdictional issues and he had been invited to make a further statement but had not done so. He was also contacted in relation to the asserted assurance that the reports would be furnished in February, 2024 and further engagement was invited, but he did not respond in the face of it being confirmed that he had been told that a ‘report’ had been sought and the clarification offered that the term ‘report’ normally referred to internal Garda correspondence.

159. I do not foreclose the possibility that there may be rare circumstances where the requirements of fairness make it appropriate for GSOC to conduct some further enquiry upon receipt of a GSIO report and before it decides to discontinue an investigation in reliance on its contents, but the Applicant has not demonstrated such circumstances in this case. Firstly, he was asked the question as to why he considered he had been promised reports and did not respond, and secondly, his response, had it been made, would have fallen well short of establishing assurances of the kind contended for and could not have affected the outcome of the decision-making process. Indeed, given that it is established that it would not be Garda procedure to disclose operational Garda reports to members of the public, this is a case in which it was safe for GSOC to assume that even if an assurance had been given in correspondence by mistake (even though enquiries had not thrown up any such correspondence), a failure to follow through on that assurance could not constitute a breach of discipline given the attempted engagement with the Applicant, without

response, as to the basis of his belief that an assurance had been given.

160. While the Applicant is entitled to a level of fairness in the decision-making process as a complainant and the extent of the requirements of fairness may vary depending on the circumstances, he is certainly not entitled to reframe previous complaints and then complain afresh about a want of fairness or information in respect of the new reframed complaints, without any regard to the history of the matter and previous explanations given.

161. The Applicant’s grievances are long standing and fast held. He is entitled to reject the correctness of earlier decisions, but this does not mean that he can reasonably expect this position to change absent new evidence. Nor is he entitled to have an explanation already provided repeated each time he writes to complain about the outcome of complaints of criminal wrongdoing he has made in the past and in respect of which decisions have already been communicated. Clearly, the Applicant does not accept the outcome of the process of investigation, and this is a matter for him, but he has not established that there was any unfairness arising from the way the decision by GSOC to discontinue the investigation of his complaint was taken in this case of a kind which could possibly justify the exercise by this court of a discretion to intervene to grant any of the relief sought by way of judicial review.

CONCLUSION

162. For the reasons aforesaid, I refuse the relief sought and dismiss these proceedings. I will hear the parties in respect of final orders and any consequential matters.