High Court dismisses judicial review against Garda disciplinary inquiry and Commissioner's acceptance of recommendation. Applicant's procedural complaints rejected.

Neutral Citation number [2007] IEHC 355

THE HIGH COURT

[2005 No. 136 J.R.]

BETWEEN

THOMAS NOONAN

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT

Judgment of Mr. Justice McKechnie delivered on the 17th July, 2007.

1. By order of this Court dated the 14th day February, 2005, the applicant in the above entitled proceedings was granted leave to

apply by way of an application for judicial review for the reliefs specified at paragraphs D1, D2 and D3 of the statement grounding the

application and was so, on the grounds set forth at paragraph E 1 to 5 thereof. There were two affidavits sworn in support of the

application. One by the applicant himself and the second by his solicitor Mr. Dan Murphy of Daniel Murphy & Company. In support of

the statement of opposition the principal replying affidavit was sworn by Chief Superintendent William Fennell. All parties made written

submissions and supplemented these by way of verbal presentation. There was no oral evidence and the case was thus determined

on affidavit evidence only.

2. In essence Garda Noonan seeks an order of certiorari quashing the decision of and recommendation of the Garda Síochána

Disciplinary Inquiry made on the 16th July, 2004 and secondly a similar order with regard to the decision of the Commissioner, dated

the 3rd August, 2004, to accept that recommendation and to insist upon the resignation of the applicant from An Garda Síochána or

otherwise face dismissal in lieu thereof.

3. There is in existence another set of judicial review proceedings between Garda Noonan and the Commissioner. Those proceedings,

under record number 2004 No. 1116 J.R have been the subject matter of a separate judgment which has already been given by this

Court.

4. Garda Noonan, who is a married man with one child, joined An Garda Síochána in 1975 and has been stationed in Listowel, Co. Kerry

since in or about 1980. With the rank of garda he continued in active service with the force until the 17th May, 2001, when he went

absent on sick leave. The reasons advanced by him for so doing relate to the injuries which he suffered, in a road traffic accident in

January, 1999 when his patrol car was rammed by a lorry. His physical injuries, namely to his back and neck, were later exacerbated

by anxiety and depression. He has been treated by many doctors in respect thereof. Many of these, have recommended his

participation in physical exercise so as to aid his recovery. To that end he is a registered course designer with the Show Jumping

Association of Ireland, and as part of organising and planning the design of such courses, he occasionally involves himself in physical

work. This has been ongoing for a number of years but the expected recovery has not as yet taken place. As a result he has never

returned to duty and presently stands suspended as part of disciplinary proceedings instituted against him. It is those proceedings

which are the subject matter of both sets of judicial review actions.

5. The disciplinary proceedings last mentioned, were instituted under the Garda Síochána (Discipline) Regulations 1989, SI 94/1989

(“The Regulations of 1989”). The following of these regulations are relevant to the issues raised in this case.

Regulation 14: After the return of the discipline formàthe appointing officer shall, àforward to the Commissioner without

avoidable delay all the documents in his possession relating to the breach of discipline alleged and the Commissioner

(unless he decides not to continue the proceedings) shall cause an inquiry to be held on a date specified by him in

relation to the breach of the discipline alleged.

Regulation 15:

(1) …

(2) …

(3) “The date of the inquiry may be altered by the presiding officer but shall not be so altered unless the member

concerned is notified of the alteration and shall not be altered so as to abridge the period of notice mentioned in

paragraph (2) unless the member concerned agrees.

(4) …

Regulation 18: At the inquiry –

(g) where, because of the absence of the member concerned or a witness or for any other reason, the presiding

officer is satisfied that the inquiry should be adjourned, he may adjourn it to a specified date and, in a case where

the member concerned or a witness is absent, shall, if practicable, cause that member or witness to be notified of

the adjournment.”

Regulation 20 (1) Where, at an inquiry, a breach of discipline is admitted by the member concerned or is found to have

occurred the Inquiry –

(a) …

(b) …

(c) If the inquiry is held by three members, may, in relation to the member concerned –

(i) …

(ii) recommend to the Commissioner the taking of one of the following disciplinary actions, namely:

(I) dismissal,

(II) requirement to retire or resign as an alternative to dismissal,

(III) reduction in rank.

23(1) As soon as practicable after the receipt by him of a recommendation under clause (ii) of Regulation 20(1)(c), the

Commissioner shall decide which of the disciplinary actions specified in the said regulation 20(1)(c) should be taken in the

matter.

(2) A decision of the Commissioner under paragraph (1) as to the disciplinary action shall be entered on the discipline form

which shall be transmitted to the member concerned who shall note the decision thereon and submit it to his immediate

superior for return to the Commissioner.

?34. Where, because of the absence of the member concerned, compliance with a requirement of these Regulations is not

possible, proceedings may take place notwithstanding such non-compliance if an inquiry or an Appeal Board (as the case

may be) is satisfied that this is reasonable in all of the circumstances.ö

6. The precise dates, events and circumstances, leading up to the service of a discipline form (Form B30) on 13th February, 2003,

alleging that Garda Noonan had committed fifty-one breaches of discipline under the Regulations of 1989 (reference KE. 27. 1/01),

and of a second such form on 13th March, 2003, alleging four further breaches (reference KE. 27. 1/02), are not in dispute and no

issue arises as to regulatory compliance in respect of such matters. The fifty-one charges, contained in Form B30 of the 13th

February, 2003, allege in broad terms that the applicant had failed to prosecute seventeen named individuals for a suspected breach

of s. 49 of the Road Traffic Acts 1961-1995. In respect of each individual there are three charges with the other two being subsidiary

to the substantial one. The four charges contained in the second Form B30 dated 13th March, 2003 allege a failure on the applicant’s

part to promptly report damage to an official garda patrol car and secondly to promptly report the disappearance of a named lady

whom it is claimed he had conveyed in the patrol car on the night in question. The two other lesser charges are inherently linked to

these substantial charges.

7. After the service of these documents the following events then took place.

26th June, 2003: Assistant Commissioner Murphy appoints Chief Superintendent Fennell and Superintendents Moynihan

and Keohoe as a board to conduct a sworn disciplinary inquiry into these matters. The order so appointing specified the

11th August, 2003, as the commencement date with the location for the inquiry being Listowel, Co. Kerry.

11th August, 2003: Prior to this date an application was made on behalf of Garda Noonan to have the inquiry adjourned

on the basis that he was medically unfit. This was granted and a new date of 21st October, 2003 was substituted.

21st October, 2003: By this stage Mr. Charles O’Connor, a solicitor from Millstreet, Co. Cork had been retained by the

applicant. On 2nd October, an adjournment was sought on the basis of the solicitors prior commitments. This was granted

and matters adjourned to 2nd December, 2003.

26th November, 2003: On this date the applicant sent a fax to the Superintendent at Listowel Garda Station which was

forwarded to the presiding officer of the inquiry namely Chief Superintendent Fennell. In that fax Garda Noonan sought a

further adjournment. He claimed that Mr. O’Connor had a conflict of interest and could not longer act for him. His new

solicitor, Mr. Tom Murphy, would not be available. Secondly a witness, said to be vital to Garda Noonan’s case, was on

sick leave. Thirdly, a substantial period of time was required in order to prepare for his defence and he also took objection

to the manner in which certain documents had been served on him. Reference was made to a medical report from Dr. Billy

O’Connor of Listowel.

28th November: a reply was sent on behalf of the presiding officer wherein it was indicated that any application of Garda

Noonan’s would have to be made to the inquiry itself on 2nd December and secondly, that if any doctors’ certificate was

being relied upon, the doctor himself should attend before the inquiry.

2nd December, 2003: Garda Noonan did not attend the inquiry but once more was represented by Mr. O’Connor who

explained his conflict of interest. In making a further application for an adjournment he called Dr. Billy O’Connor who gave

evidence. The board decided to defer the commencement date until the 19th January, 2004.

19th January, 2004: On this date Mr. Charles O’Connor again appeared on behalf of the applicant. Once more an

application was made for an adjournment. Dr. Matt Kinch a consultant psychiatrist gave medical evidence. The matter

was once more adjourned, this time to 23rd March, 2004.

23rd March, 2004: On 18th March, Dr. Kinch wrote to the presiding officer and offered as his professional opinion the view

that Garda Noonan was medically unfit to attend the hearing scheduled for 23rd March. This unfitness would continue for

a ôfurther six/eight weeksö. He ended the letter by stating that he, Dr. Kinch, had ôinstructed him not to attend the re-

hearing on Tuesday 23rd Marchö. A further adjournment was granted until 25th May, 2004.

25th May, 2004: On 18th May, Dr. Kinch once again writes to the presiding officer. He continues to maintain that the

applicant is psychiatrically unfit to attend the inquiry. As a result he has instructed him not to appear on 25th May.

Because of this, the inquiry was adjourned to 6th July, 2004.

June – 5th July, 2004: On 18th June, 29th June and on 5th July, 2004, Garda Noonan writes to the Chief Superintendent,

with Dr. Kinch also sending a letter on 18th May, 2004. Although the applicant’s letters are marked ôwithout prejudiceö, I

have assumed that since these have been exhibited in his affidavit any consequences from this marking have been

waived. From these letters it would appear that between 25th May and 6th July, the applicant had difficulty in contacting

a solicitor. Indeed those with whom he consulted would now, according to his letters, be required as witnesses for the

various reasons therein set forth. Ultimately he was referred to Mr. Daniel Murphy from Cork. Mr. Murphy could not meet

the 6th July, deadline but would be in a position to represent him in September. Garda Noonan, supported by Dr. Kinch,

alleges that he continues to be medically unfit, that he would not attend the inquiry and would not be represented at it.

6th July, 2004: The inquiry refuses the applicant’s request for any further adjournment and proceeds with its investigation

notwithstanding his absence. It continued on 7th, 8th and 9th of July, and on 13th, 14th and 16th.

16th July, 2004: The inquiry found the applicant guilty of the breaches of discipline alleged at Nos. 1 – 6, 13 -21 and 25 -

51 on Form B30, dated the 13th February, 2003 (reference KE. 27. 1/01) and guilty of the breach of discipline alleged at

No. 1 on Form B30 dated the 13th March, 2003 (reference KE. 27. 1/02). On the remaining allegations contained, in both

discipline forms, the member concerned was found not guilty. The inquiry made a recommendation to the Commissioner

under Regulation 21(c)(ii) with regard to its findings on the first mentioned discipline form, and on the single count in the

second, he was fined Ç1,500.

3rd August, 2004: By letter of that date the Commissioner accepted the decision and recommendation of the inquiry and

relative to sanction requested the applicant to resign from the force by the 24th August, 2004, failing which he would

stand dismissed as and from midnight of that date.

12th August, 2004: The applicant applies to have this decision reviewed by an Appeal Board, under Regulation 26 of the

1989 Regulations.

15th December, 2004: The review, which is due to commence on this date, is adjourned to 16th February, 2005.

14th February, 2005: Some days prior to the commencement of the review the applicant moves this Court and obtains

leave to institute the within proceedings. That order places a stay on the further determination of the appeal until this

case is concluded.

8. Arising out of the above the applicant raises a number of issues for the determination of this Court. The first issue is an allegation

that the inquiry was in breach of the Regulations of 1989 and/or failed to comply with fair procedures in that the inquiry itself did not

adequately consider or adjudicate on the applicant’s request to further adjourn on 6th July, 2004 and in proceeding with it in the

absence of the applicant.

9. There are three Regulations which have potential relevance to this particular issue. Under Regulation 15(3) the presiding officer has

power to alter the date of the inquiry but not such as to abridge the right of the member concerned to at least twenty one days

notice of its commencement. That officer is also given a similar power under Regulation 18(g) when the member concerned is absent,

or when a witness is unavailable or “for any other reason”. It is not altogether clear as to how the later provision supplements the

earlier one. Perhaps Regulation 15(3) was intended to apply either before the original specified date was ever reached or alternatively

before the inquiry had in fact ever sat; whereas Regulation 18(g) would apply after the commencement of the inquiry. Whichever, it is

clear that the powers given to the presiding officer are not powers, the exercise of which is reserved to the inquiry itself. Regulation

34, which is headed “Absence of member concerned”, is also relevant in that an inquiry may proceed, if it is reasonable to do so, even

if a Regulation cannot be complied with due to the absence of the garda in question.

In view of the particular circumstances of the instant case it is not necessary to decide on the precise interrelationship between

Regulation 15(3), Regulation 18(g) and Regulation 34. This, for two reasons. Firstly I am satisfied that the inquiry did in fact properly

consider and adjudicate upon the adjournment request on 6th July, and secondly because in any event, the requirements of natural

justice and fair procedures dictate that any such inquiry must at all stages act reasonably according to the circumstances.

10. This particular issue was touched upon in Lohan v. Commissioner of An Garda Síochána (Unreported, High Court, McCracken J,

13th May, 1998). At p. 8 of the judgment, McCracken J. when dealing with the appropriate principles said:-

“Under Regulation 34 of the Garda Síochána (Discipline)Regulations, 1989 it is quite clear that a board of inquiry may

proceed in the absence of the member whose conduct is being enquired into if the board is satisfied that this is

reasonable in all the circumstances. The board expressed themselves to be so satisfied but of course I am entitled to

consider whether that decision was so irrational or unreasonable that no board of inquiry could reasonably have reached

it. I am also entitled to look at the procedures in general, as there is no doubt that a board of inquiry such as this must

not only comply with its own internal regulations but must also comply with the principles of natural and constitutional

justice.”

In that judgment reference is also made to O’Callaghan v. District Judge Clifford [1993] 3 I.R. 603, a case in which the decision of the

judge not to adjourn a District Court prosecution for a period of two hours or thereabouts, was found to have breached the principles

of natural justice and fair procedures. The facts in O’Callaghan are accordingly entirely different from those in the instant case.

11. The case of Lawlor v. District Judge Hogan [1993] I.L.R.M. 606 is also of interest where Murphy J. at p. 610 of his judgment

stated:-

“As the researches of counsel have been unable to put the matter any further, I can only deal with the matter on first

principles, which would seem to involve the following propositions:-

(1) That insofar as the judicial process in criminal matters expressly requires matters to be dealt with by or in

relation to the individual accused, clearly he must be present to enable those functions to be performed.

(2) The right of an accused to be present and to follow the proceedings against him is a fundamental constitutional

right of the accused which every court must be bound to protect and vindicate.

(3) If a trial judge is satisfied that the accused has consciously decided to absent himself from the trial (at a time

when his presence is not essential to enable some particular procedure to be complied with) then the trial judge is

entitled in his discretion to proceed with the trial in the absence of the accused.

In the circumstances I am satisfied that the trial judge was entitled to exercise his discretion in the manner which he did and to

proceed with the trial notwithstanding the absence of the accused.”

Whilst the proceedings in the present case are not criminal in nature but are disciplinary only, nonetheless it is interesting to note

that if an accused person deliberately absents himself, then subject to para. (1) above, a trial judge is entitled to exercise his

discretion and proceed with the matter.

12. To succeed on this first issue the applicant must satisfy this Court that the decision taken on 6th July, 2004 was in breach of the

Regulations and/or was so unreasonable that no rational inquiry could have reached such a decision. The first complaint in this regard

is that the documentation sent to the presiding officer in support of Garda Noonan’s application for an adjournment, was not

circulated to his fellow inquiry members. Accordingly as this material was not known to two members they could not have considered

it as a team and consequently it could not be said that the decision to refuse the adjournment and proceed with the hearing was

taken by the inquiry itself. In support of this argument it is pointed out that the transcript of 6th July, 2004, does not contain any

reference to this documentation or to a decision of the inquiry having been taken thereon. Disregarding the point as to whether or not

the presiding officer could have reached this decision on his own, the following would appear to emerge from the overall evidence.

The applicant is correct in indicating that the transcript of 6th July is silent on these material points. However in paras. 11 and 12 of

his affidavit sworn on 4th May, 2005, Chief Superintendent Fennell (the presiding officer) swears that each letter and document

received from the applicant, including his letters dated 18th June, 29th June and 5th July, 2004, as well as Dr. Kinch’s report of 18th

May, (see p. 7 supra) were all circulated by him to the other members of the inquiry and this was done prior to making the decision to

proceed in the absence of the applicant. Moreover he avers that the inquiry team discussed the issue of Garda Noonan’s non

attendance and whether the matter should proceed in his absence. This again was done prior to the commencement of the hearing.

This evidence stands substantially unchallenged. In addition at p. 13 of the transcript dated 16th July, 2004, the presiding officer is

recorded as stating:-

“The inquiry opened as scheduled on Tuesday 6th July, 2004. Garda Thomas Noonan, the member concerned, failed to

appear and was not professionally or otherwise represented. The evidence relating to the particular alleged breaches of

discipline covered by this part of the inquiry commenced on 6th July. The Board, was satisfied that the member concerned

was properly notified of the inquiry and in accordance with Regulation 34 of the Garda Síochána Disciplinary Regulations

1989, proceeded in his absence.”

Accordingly there is evidence that all relevant material was placed before the inquiry, that the same was considered by its members

and that the consequences of proceeding in the absence of the applicant was discussed. If this evidence, including the extract from

the transcript which I have quoted, had appeared on the transcript for 6th July, then no point could have been taken by Garda

Noonan relative to the board’s alleged failure to consider the relevant material. Whilst undoubtedly it would have been more

appropriate to have recorded this evidence earlier in the transcript, nevertheless the mere fact that it was not, is not in my view,

fatal. What is critical is that all matters were considered at the relevant time and a decision made on them by the inquiry. Faced with

this evidence therefore I am satisfied that there is no substance in this point of challenge.

13. In addition it should be said that the affidavits do not give a comprehensive picture of the background as it was known to the

inquiry team on 6th July, 2004. That team had been in place since 11th August, 2003. They had sat on 2nd December, 2003 and on

19th January, 2004 and on both occasions heard evidence not only from doctors called on behalf of the applicant but also from

Superintendent O’Brien on behalf of the presiding officer. On any reading of the transcripts of these hearings, it is quite clear that

there was a substantial body of evidence introduced which could legitimately have cast serious doubts on the claim of the applicant

that he was medically unfit to attend at the inquiry on either of those dates. For example Dr. O’Connor, who gave evidence in

December, and who had been treating Garda Noonan for several years, only first noticed the question of depression or anxiety some

short few days prior to 2nd December. In his view it was critical to get a consultant to assess Garda Noonan. The consultant, or at

least one of them, was a neurosurgeon in Dublin whose only possible comment relative to depression was that he noted “quite

expressionless features” of the applicant. On 19th January, 2004, Dr. Kinch who had seen him for the first time only on 3rd December,

said he was hopeful that the applicant would be fit within a number of months. His evidence was tested in cross examination and

whilst the ultimate decision favoured a further adjournment, it could not be said that there was no countervailing evidence against

that decision. On 6th July, Sergeant Barry gave evidence that he had spoken with the member concerned on 2nd July and on 5th

July, and had informed him that the inquiry would not be adjourned and that whatever submissions he wanted to make would have to

make at the inquiry. In response, Garda Noonan indicated that he would not be in attendance and would not be represented. Indeed

that was the situation. Neither the applicant nor any person on his behalf, whether lawyer or doctor attended at the inquiry on 6th

July or on any date thereafter. Accordingly I am entirely satisfied, from a careful consideration of the entire documentation, that the

decision of the inquiry to proceed on 6th July could not be said to be irrational or otherwise unreasonable. I am firmly of the view that

there was sufficient material before it which would justify it in reaching a lawful decision to proceed with the inquiry.

14. The second issue is grounded upon an allegation that under Regulation 18(g) the member concerned should have been notified at

the end of each day’s hearing of the inquiry’s intention to continue hearing on the day following. Subparagraph (g), of this Regulation

which is quoted at para. 5 supra, confers on the presiding officer, power, in the absence of the member concerned, to adjourn an

inquiry and “if practicable” to inform that member of the adjourned date. What occurred in this case was that the inquiry commenced

on 6th July and continued until 16th July with the exception of 12th and 15th July. Subject to those dates therefore, once the inquiry

commenced it ran to its conclusion. For example in late afternoon on 6th July it adjourned to 7th July and so on. Regulation 18(g) in

my view was never designed to cover this situation. Rather it was intended to make sure that the member concerned who would

already have been notified of the commencement of the inquiry, would also be notified of any date to which the inquiry was

adjourned. In my view there were no adjournments during the currency of this inquiry. Subject to a scheduling of witnesses and other

procedural matters, the inquiry, once commenced ran to its conclusion. I therefore do not believe that there is any substance in this

point.

15. In addition, it is claimed that the “second inquiry” into the four alleged breaches of discipline contained in the discipline form of

13th March, 2003 did not commence until 13th July, and accordingly the applicant should have been specifically so notified. In my

view this point is entirely without substance. Virtually from the very beginning, the board of inquiry with the knowledge and

acceptance of the applicant, decided that both would be linked together and that all procedural decisions made referable to one

would equally apply to the other. For example on 14th October, 2003, all fifty five alleged breaches of discipline were adjourned to

2nd December and again on 18th March, 2004, all fifty-five were adjourned until 25th May. Moreover on several subsequent dates,

including the date of the verbal notification given by Sergeant Barry to the applicant, the latter was fully aware at all stages that the

commencement date of both inquiries was 6th July, 2004. The fact that a decision was made to precede with the more substantial

allegations first and to immediately follow-on with the remaining four charges, was a matter purely of procedural practicality. In my

view the course adopted was entirely reasonable. In addition the applicant has suffered no prejudice whatsoever in this regard given

his declared intention of neither appearing or of being represented.

16. There were two further matters referred to in the submissions made on behalf of the applicant. The first was that the Garda

Síochána Code was breached and the second was that the applicant should have been specifically notified, after being found in

breach of discipline, that the inquiry then proposed to consider what recommendation it would make regarding the imposition of

penalties. Neither of these grounds were permitted by the leave order of 14th February, 2005. In any event given my findings on

Regulation 18(g) and Regulation 34 no issue arises under the Code. With regards to the second point there is no doubt but that in

certain limited circumstances there may be an obligation on a decision making body to specifically inform an effective person of its

intention to impose penalties. See Brennan v. Windle [2003] 3 I.R. 494. This type of requirement may arise as part of a more

generalised obligation to ensure that the operation of any legal framework is conducted in such a manner that the legal and

constitutional rights of any impacted party are fully protected. Each case must therefore be considered by reference to its own

circumstances. In the instant matter I have no doubt but that there was no such obligation on the inquiry. Given the background as

above outlined and knowing the applicant’s declared intention of neither being present or being represented I am satisfied that in

continuing to consider its recommendation on the issue of penalty there was no breach of fair procedures.

For the above reasons I would dismiss this case.