Appeal dismissed; no bias found as ad-hoc tribunal members were distinct from those making public statements.

THE SUPREME COURT

Record No. 2004/098

McCracken J.

Macken J.

O’Donovan J.

BETWEEN

DONAL CORCORAN

APPLICANT/APPELLANT

.v.

GORDON HOLMES AND AN GARDA SIOCHANA (COMPLAINTS BOARD)

RESPONDENTS

Judgment of McCracken J. delivered the 8th day of May 2006

THE PROCEEDINGS

1. These are Judicial Review proceedings in which the appellant is seeking inter alia the following reliefs:-

“(1) An Order of Prohibition by way of application for judicial review prohibiting the first and second named respondents and

each and either of them from taking any further steps in the statutory proceedings the subject matter of this application.

(2) An injunction by way of application for judicial review restraining the second named respondents and each and either of

them from taking any further steps in the statutory proceedings the subject matter of this application.

(3) An order prohibiting the second named respondent from the exercise of any of its powers conferred by virtue of the

provisions of section 7 of An Garda Siochana (Complaints) Act 1986”.

2. The appellant is also claiming certain consequent declaratory reliefs.

3. The matter was heard before the High Court (Murphy J.) and by a judgment of 5th February 2004 the application was refused.

THE BACKGROUND

4. On 5th May 2002 a demonstration took place in the centre of Dublin known as “Reclaim the Streets March”. In the course of the

demonstration there were clashes between members of the public and members of An Garda Siochana and subsequently there was a

great deal of media coverage which was very critical of the actions of certain Gardai. The appellant is a member of the Gardai and

was on duty at the time of this demonstration.

5. The second named respondent (herein called “the Board”) is a statutory body set up under the provisions of the Garda Siochana

(Complaints) Act 1986 and the first named respondent (herein called “the Chairman”) was at all relevant times chairman of the Board.

Subsequent to the demonstration, the Board received some forty one complaints against members of the Gardai and five of these

complaints were subsequently identified as being complaints against the appellant. Four such complaints alleged assault on his part

and the fifth complaint alleged that he had failed to wear any identification on his uniform. For reasons which will appear later, these

proceedings only concern the latter complaint.

STATEMENTS BY THE APPELLANTS

6. Following a meeting of the Board on 18th November 2002 the Board issued a press release relating to the demonstration and the

complaints against the Gardai which stated, inter alia, as follows:-

“A further aspect of the investigation the Board examined was that, save with limited exceptions, Garda members who were

on duty at the march failed to make statements to the investigation team despite having been invited to do so. In particular,

the Board noted that no Garda member had supplied any evidence or material to the effect that another member might have

been involved in conduct which would constitute a breach of discipline. The Board is concerned with the general lack of co-

operation involved and it is considering the steps it might take, within the scope of the 1986 Act, to obtain statements from

specific members.

While the Board is very disappointed with the response of most of the individual members who are contacted it also wishes to

acknowledge the very full and extensive co-operation which was received from the Garda authorities. Without that support

and assistance the investigation would undoubtedly have been much more difficult and would not have proved to be so

successful.”

7. On the same day the chairman was interviewed on the radio programme “Five Seven Live” and in the course of the interview said:-

“Unfortunately the situation was that we had film available, which identified clearly Gardai who were not involved. Equally

those films showed very often the backs of Gardai who were wielding a baton with perhaps you might say excessive

enthusiasm. And we could not identify those members of the Gardai. But when we asked their colleagues who were not being

charged with anything, we found that each and every one of them seemed to forget who they were and we could not get any

identification. We did not get identification in any one case from a colleague. I suppose that speaks well of their loyalty to their

colleagues. But unfortunately it does not speak that well of their loyalty to the Garda Siochana generally, because it is

something we did not like.”

8. When asked how many Gardai would he estimate had failed to co-operate, he replied:-

“Difficult to say that because we...some of the Gardai…there is a great deal of duplication involved. But certainly there are

probably eight or nine other members of the Gardai…who probably might well have been charged with some breach of

discipline or something of nature had we had full co-operation.”

9. In addition, the Board held a Press Conference on the same day, of which a transcript is not available but it is alleged that similar

sentiments were expressed by the chairman.

10. The appellant seeks to prohibit any further investigation of the complaints against him on the basis that these statements were

made on behalf of the Board and show objective bias in that a reasonable person would apprehend that a fair trial of the charges

against the appellant would not take place by reason of these statements. It should be said that there is no allegation against the

chairman, or indeed any other individual members of the Board, of actual bias.

11. In support of his argument, the appellant also points to the fact that, in the immediate aftermath of the demonstration, a

photograph appeared in a daily newspaper showing the applicant taking part in the Garda reaction to the demonstration. In my view

this is totally irrelevant and could have nothing to do with any perceived bias against either of the respondents.

THE SCHEME OF THE ACT

12. The Board was set up under section 3 of the Garda Siochana (Complaints) Act 1986 and its powers in relation to complaints are

very wide-ranging. It is empowered to deal with complaints made either orally or in writing, and made either directly to the Board or to

a member of the Garda Siochana at a Garda Station or to a member above the rank of Chief Superintendent at a place other than a

Garda Station. Such complaints must be made within six months of the date of the conduct complained of.

13. The following are the provisions of the Act relevant to the present dispute:-

14. Section 6(5) provides:-

“(a) Notwithstanding anything in this Act, the Board may, at any time, request the chief executive to investigate, or cause to

be investigated, a complaint if the Board considers that the public interest requires that the complaint should be so

investigated or that the investigation of the complaint under this Act has not been or is not being properly carried out and,

where such a request is made, any investigation under any other provision of this Act of the complaint concerned shall

thereupon cease.”

15. Section 7(1) provides:-

“If, after consideration of:-

(a) a report or reports of an investigating officer submitted to the Board under section 6 of this Act and the relevant

comments and recommendation of the chief executive so submitted to the Board, or

(b) the report of the chief executive and the result of an investigation under subsection (5) of that section,

the Board is of opinion that the complaint concerned is admissible and that the conduct alleged in the complaint may

constitute an offence committed by the member concerned, it shall refer the matter to the Director of Public Prosecutions.”

16. Pursuant to this provision, the complaints of assault against the appellant were referred to the Director of Public Prosecutions by

the Board, and are not being dealt with by the appointment of a Tribunal.

17. Section 7(5) provides:-

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

concerned…may be disclosed, it shall refer the matter to a tribunal.”

18. Section 8 provides:-

“(1)(a) The Board shall from time to time appoint a tribunal to consider such matter or matters as may be referred to it by

the Board under section 7(5) of this Act during such period as may be specified by the Board at the time of the appointment.

(b) More than one tribunal may be appointed under paragraph (a) of this subsection in respect of the same period.

(2) The provisions of the Second Schedule to this Act shall have effect in relation to a tribunal.”

19. Detailed provisions in relation to Tribunals are set out in the second schedule to the Act, and include the following the following

provisions:-

“1(a) A tribunal shall consist of three persons.

(b) Two of the members of the tribunal shall be members of the Board (other than the member of the Garda Siochana who is

a member of the Board) who have not been concerned with the matter referred to the tribunal and one, at least, of them

shall be a practising barrister, or a practising solicitor, of not less than ten years’ standing.

(c) The third member of the tribunal shall, subject to paragraph 2(4)(d) of the First Schedule to this Act, be a member of the

Garda Siochana (other than the member of the Garda Siochana who is a member of the Board) who -

(i) is not below the rank of chief superintendent.

(ii) has not been involved in the investigation of the matter referred to the tribunal, and

(iii) Is nominated in that behalf by the Commissioner.”

“7. A decision of a tribunal may be that of a majority of its members”.

20. The procedure followed in this case, therefore, was that initially the Board requested the chief executive to investigate or cause

to be investigated the complaints, pursuant to section 6(5). The chief executive caused the complaints to be investigated by

appointing former Assistant Commissioner James McHugh to carry out the investigation and following the receipt of his report the

Board decided to refer the matter to a Tribunal pursuant to section 7(5). By reason of the existence of these proceedings, no Tribunal

has in fact been appointed, but it is quite clear that pursuant to the provisions of the second schedule no member of any Tribunal

which may be appointed will have taken part in the decision under section7(5) to refer the matter to a Tribunal. It is therefore quite

clear that the chairman cannot be a member of the Tribunal.

THE AUTHORITES

21. In Orange Communications v Director of Telecom (No. 2) [2000] 4 I.R. 159 Geoghegan J. dealt with the question of bias at page

251 as follows:

“What the authorities seem to have established is that there are in effect three different situations whereby bias may arise:

(1) The rare case of proved actual bias. For such bias to be established it would be necessary actually to prove that the

judge or the tribunal or the adjudicator or whoever the person might be, was deliberately setting out to mark or hold

against a particular party irrespective of the evidence.

(2) A situation of apparent bias where the adjudicator has a proprietary or some other definite personal interest in the

outcome of the proceeding, competition or other matter on which he is adjudicating. In that case there is a

presumption of bias without further proof.

(3) Even in cases where there is no evidence of actual bias and no evidence of the adjudicator having any proprietary or

other interest in the outcome of the matter, there will still be held to be apparent bias if a reasonable person might

have apprehended that there might be bias because of some particular proven circumstance external to the matters to

be decided in the case such as for instance a family relationship in circumstances where objection may be taken. O’Reilly

v Cassidy [1995] 1 I.L.R.M. 306, or the judge having been involved in a different capacity in matters which were

contentious in Dublin Well Woman Centre Limited v Ireland [1995] 1 I.L.R.M. 408 or where there was evidence of

prejudgment by a person adjudicating. O’Neill v Beaumont Hospital Board [1990] I.L.R.M. 419.”

22. It is alleged by the appellant that the circumstances of the present case come within the third category as set out by Geoghegan

J. The appellant relies in particular on the case of O’Neill v Beaumont Hospital Board. In that case the respondent Board determined to

institute an Inquiry as to whether the plaintiff’s service during a probationary period as a consultant was satisfactory. The plaintiff

sought to restrain the hearing of such Inquiry on the basis that the members likely to participate were biased. Such bias was alleged

to have been evidenced in minutes of a meeting of the Hospital Board, and in particular on comments made by the chairman of the

Board at such meeting. At page 438 of the report Finlay C.J. said:-

“I am satisfied that the proper standard to be applied by this court which does not appear to be wholly different, though it

may be subtly different from the standard which was applied in the High Court, is the question as to whether a person in the

position of the plaintiff, Mr O’Neill, in this case who was a reasonable man should apprehend that his chance of a fair and

independent hearing of the question as to whether his services should be continued or terminated does not exist by reason of

the pre-judgment of the issues which are involved in that case by the members of the Board. That in my view is the proper

test to be applied in this case, and it fulfils from what I understand from the authorities to be the test which has been

accepted in this country and by this court in relation to a case of this description.”

23. At the following page he then applies that test as follows:-

“In those circumstances, I take the view that applying the test which I have outlined in short terms and which I believe to be

the appropriate test in this case, that a person in the position of the plaintiff who is a reasonable man and not either over-

sensitive or careless of his own position, would have good grounds for a fear that he would not get in respect of the issues

involved, from a body which included the chairman, an independent hearing. I emphasise again, particularly, as the chairman

in regard to these matters did not give any oral evidence before the High Court and of course has not been heard by this

court, that that is not a suggestion that he would not be honest or seek to be honest. The test is an objective test as to

whether a person in the position of the plaintiff who is a reasonable man might reasonably fear that the pre-judgment

expressed by the chairman would prevent a completely fair and independent hearing of the issues which arise.”

24. In the event, the court granted an injunction restraining the chairman and two other named members of the Board whose remarks

had also been set out in the minutes, from taking part in any meeting of the Board at which the plaintiff’s position was to be

considered or decided.

25. The appellant also relied on the case of O’Neill v Irish Hereford Breed Society Limited 1 I.R.431. In my view this case is of no

assistance to the appellant as it dealt with the situation where a committee of the defendant recommended that expulsion

proceedings be initiated against the plaintiff, and the only relief claimed by the plaintiff was that members of that committee should

not sit on the council which would make the ultimate decision. The provisions of the 1986 Act in the present case make it quite clear

that such a situation could not arise in relation to the Board.

CONCLUSION

26. I am quite satisfied that the test propounded by Geoghegan J. in Orange Communications Limited .v. Director of Telecom and by

Finlay C.J. in O’Neill v Beaumont Hospital Board are the correct tests. A decision making Body, and particularly a disciplinary Body

such as the Board, ought not to be allowed to carry out its statutory functions if the person whose actions are being considered

would have a reasonable apprehension that the Tribunal concerned would be biased against him. However, it must be emphasised that

this test is an objective one. It is not sufficient if the person concerned does in fact apprehend that there would be bias, it is

necessary that such apprehension would be held by a reasonable person in his position.

27. The statements made in the present case, both in the Press Release and by the chairman, were general statements made on a

matter of public concern. The Board is entitled to make public statements in such circumstances, and indeed it might be said that in

certain situations has a duty to do so. I accept that the statements made by the chairman were made on behalf of the Board and

with the implied authority of the Board, but I do not think this affects the situation. Of course the Board is a body corporate and the

views must be seen as emanating from a body corporate. What must not be lost sight of, however, is that the proposed Tribunal will

not be a body corporate, but will be an ad-hoc body consisting of three individuals, none of whom will have taken part in the decision

to refer the appellant’s behaviour to the Tribunal, and none of whom will have been at the meeting which authorised the public

statements. The only perceived bias about which the appellant is entitled to complain would be the perceived bias of the members of

the Tribunal who are making the decision relating to him. The whole logic of the decision in O’Neill .v. Beaumont Hospital Board was

that certain individual members of the Board should not be allowed to partake in the decision making process in relation to Mr O’Neill,

and not that no member of the hospital board could take part in such decisions.

28. In any event, I do not think that a reasonable person in the appellant’s shoes could consider that there was bias against him

personally. The appellant was not named in any way, either directly or by implication, in any of the statements complained of. The

statements basically complained of non co-operation on the part of members of the Gardai in the investigation into the conduct of the

Gardai at the demonstration but the appellant has not been charged in any way with non co-operation of that nature. Furthermore

the appellant does not contest the truth of the statements or allegations made by the Board in this regard. In my view the appellant

is fully protected by the provisions of the Act which ensure that no person who took part in the decision to refer his conduct to the

Tribunal will sit on judgment on him as a part of the Tribunal.

29. I would accordingly dismiss this appeal.