Supreme Court dismisses appeal against disciplinary delay, upholding public interest over individual prejudice.

THE SUPREME COURT

No. 174/2007

Finnegan J.

McKechnie J.

O’Donnell J.

BETWEEN:

IAN GILLEN

APPLICANT/APPELLANT

and

THE COMMISSIONER OF AN GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Mr Justice Finnegan delivered on the 26th day of January 2012

The appellant is a member of An Garda Siochána and at all relevant times was stationed at Kill O Grange, Co. Dublin. By order of the

High Court (Macken J.) dated 21st February 2005 the appellant was granted leave to apply by way of judicial review for the following

reliefs:-

“1. An Order by way of injunction restraining the respondents from holding an inquiry or further processing the

disciplinary proceedings against the applicant herein in respect of three alleged breaches of discipline on the 15th

day of October 1999.

2. A declaration that the failure by the respondents to process or progress the disciplinary proceedings against the

applicant in respect of alleged breaches of discipline on the 15th day of October 1999 expeditiously breached basic

fairness of procedures to which the applicant was entitled and/or constituted a breach of statutory duty and/or

breached the applicant’s legitimate expectation that serious allegations of misconduct alleged against him pursuant

to the Garda Siochána (Discipline) Regulations 1989 would be dealt with expeditiously.”

The grounds relied upon for the said reliefs are as follows:-

“1. The delay by the respondents in processing the alleged breaches of discipline on the part of the applicant on

the 15th October 1999 was inordinate and inexcusable and breached the applicant’s right to natural and

constitutional justice and fair procedures, was ultra vires and in breach of statutory duty and breaches his

legitimate expectation that serious allegations of misconduct alleged against him pursuant to the Garda Siochána

(Discipline) Regulations 1989 would be dealt with expeditiously.

2. The respondents acted ultra vires and in breach of statutory duty in purporting to initiate an investigation

pursuant to Article 8 of the Garda Siochána (Discipline) Regulations 1989 on the 4th May 2004.”

In the statement of opposition the respondents raised as a preliminary objection that the application is out of time in that it was not

moved promptly or in any event within three months from the date upon which the grounds for the application first arose. Without

prejudice to that objection the respondents relied upon grounds of objection which may be summarised as follows:-

“1. The investigations were conducted as soon as practicable and there was no inordinate delay.

2. The family reserved their rights to make a complaint and did not make a written complaint. The Garda Siochána

(Complaints) Act 1986 section 15(2) stipulates that the procedure under that Act takes precedence over

proceedings pursuant to the Garda Siochána (Discipline) Regulations 1989. The decision from the Complaints Board

was not received until the 25th March 2004 and there was no delay thereafter.

3. The appellant is not entitled to rely on delay caused by members of the Garda Siochána and/or the Murray

family.

4. The appellant’s complaint that he suffers disadvantage in that he is not being promoted as he would have been

were it not for the allegations made against him is without substance, proof or reality and is in any event

irrelevant to the proceedings. The appellant has not been prejudiced by the delay.

5. The appellant has not demonstrated that he will be subjected to any unfairness.

6. The appellant does not have a legitimate expectation that the misconduct will be dealt with expeditiously.

7. The respondents did not act ultra vires or in breach of statutory duty.”

The factual background

On the 4th September 1999 the body of Raonaid Murray (“the deceased”) was found at Silchester Crescent, Glenageary. She had

suffered stab wounds. A murder investigation commenced immediately. The appellant was appointed as Family Liaison Officer to the

Murray family (“the family”) his function being to liaise between the investigation team and the family and to support and assist the

family during the course of the investigation. He was not involved with the murder investigation as such. On the 15th October 1999

Chief Superintendent Martin Donnellan was one of the senior investigating officers investigating the murder. On the 15th or 16th

October 1999 he was contacted by the parents of the deceased (“the parents”) and he called to their home on the morning of the

16th October 1999 when a complaint was made to him concerning the appellant’s conduct on the previous evening and in the early

hours of that morning. Earlier that morning the parents had confronted the appellant and informed him that they did not want him to

continue as Family Liaison Officer. In his affidavit sworn on the 8th June 2005 Superintendent Donnellan deals with the complaints

made to him as follows:-

“I say that during the course of my meeting with the Murray family on the morning of the 16th October 1999,

following the behaviour of Garda Gillen on the previous night, the complaints involved inter alia: the fact that Garda

Gillen had not returned home with their daughter from a public house at an agreed time, had driven their daughter

home in circumstances where he had taken alcohol and would have been over the legal limit. I further say that

before Mr Jim Murray outlined his concerns to me he told me that he reserved his right to make a complaint about

the matter in the future, that I acknowledged Mr Murray’s right in that regard. I say that Mr Jim Murray indicated

that he wished to reserve the right to make a formal complaint at a future date.”

Later on the 16th October 1999 Chief Superintendent Donnellan spoke to the appellant about the complaint. The appellant was

removed as Family Liaison Officer.

On the 28th April 2002 the family wrote to Detective Superintendent Hanley as follows:-

“At the time (of the complaint) we reserved the right to make a formal complaint to the authorities (hopefully

after the case had been solved) about the behaviour of Garda Gillen. We informed Chief Superintendent Donnellan

of our intentions and he acknowledged our right to do this. Now, we want to know whether any report was made

about his behaviour to his superiors and if so whether any internal disciplinary action was taken at the time.”

Inspector Ward was then appointed to deal with the allegations against the appellant. On the 26th November 2002 the parents wrote

a detailed letter of complaint to Inspector Ward, this being the first written complaint. Enclosed with the letter were detailed

statements from Sarah Murray, Jane Bridgeman and Audrey Territt as to the events of the 15th/16th October 1999. The letter of

26th November 2002 ends as follows:-

“We are forwarding this report to you as we feel that there have been serious breaches of professional conduct.

We trust that our complaint will be thoroughly investigated and expect to hear from you in due course.”

The letter and enclosures were forwarded by Inspector Ward to the Assistant Commissioner, Dublin Metropolitan Region,

recommending that a Superintendent from Internal Affairs be appointed to investigate the allegations contained in the letter.

Superintendent Kevin Donohue and Inspector Colm Featherstone were appointed to examine all issues raised by the family and on the

23rd January 2003 they met with the family in the course of which meeting the options available to the family were discussed. At the

end of the meeting the parents requested time to discuss the options with their children. On the 23rd March 2003 at a meeting the

parents confirmed that they wished to have their complaint against the appellant dealt with by way of An Garda Siochána Complaints

Board. A complaint was made to An Garda Siochána Complaints Board on the 20th July 2003. On the 25th March 2004 the Complaints

Board deemed the complaint inadmissible as having been made outside the time limit of six months of the date of the conduct

prescribed by the Garda Siochána (Complaints) Act 1986 section 4. On the 4th May 2004 Chief Superintendent Rock was appointed

pursuant to Regulation 8 of the Garda Siochána Discipline Regulations 1989 to investigate the alleged breaches of discipline by the

appellant. On the 21st May 2004 notice of the appointment of Chief Superintendent Rock was served on the appellant pursuant to

Regulation 9 of the said Regulations. Chief Superintendent Rock had received all statements deemed necessary, eleven in all, by

November 2004. On the 3rd November 2004 Chief Superintendent Rock met with the appellant and his solicitor and the statements

were read over to them. The appellant denied the allegations. On the 22nd November 2004 the completed investigation file was

submitted. On the 4th January 2005 the appellant was served with forms B30 and B33(B) together with the documents required to be

served under Regulation 11 of the Garda Siochána (Discipline) Regulations 1989. On the 21st day of February 2005 the appellant

sought ex parte and obtained leave to bring the application for judicial review.

Chronology

The relevant dates accordingly are as follows:-

4th September 1999 Murder.

15/16th October 1999 The disciplinary offences.

16th October 1999 Complaint by the family.

28th April 2002 Inquiry by the family.

12th July 2002 Family informed that Inspector Pat Ward was dealing with the matter.

26th November 2002 Letter from the parents enclosing statements detailing the complaint and making a formal complaint.

23rd January 2003 Chief Superintendent Donohue and Inspector Featherstone met with the family.

23rd March 2003 Parents confirmed that they wished to complain to An Garda Siochána Complaints Board.

20th July 2003 The family wrote to the Chief Executive of An Garda Siochána Complaints Board.

25th March 2004 Complaint deemed inadmissible by An Garda Siochána Complaints Board.

4th May 2004 Chief Superintendent Rock appointed to investigate.

4th May 2004 Notice of appointment of Chief Superintendent Rock served on appellant.

April 2004 to October 2004 Statements taken.

3rd November 2004 Appellant and solicitor met with Chief Superintendent Rock and the statements taken were read over to them.

22nd November 2004 The investigation file received.

4th January 2005 Form B30 and Form B33(B) completed.

21st January 2005 Appellant served with Forms B30 and B33(B).

21st February 2005 Leave to apply way by way of application for judicial review granted.

The Garda Siochána (Discipline) Regulations 1986

Regulation 8 of the Regulations provides as follows:-

“8(1) Subject to Regulation 7, where it appears that there may have been a breach of discipline, the matters shall

be investigated as soon as practicable by a member not below the rank of inspector (in these Regulations referred

to as an investigating officer).

(2) An investigating officer shall be appointed by a member (in these Regulations referred to as an appointing

officer) who is not below the rank of chief superintendent or who is a superintendent assigned to discharge the

duties of a chief superintendent.

9(1) As soon as practicable after his appointment, an investigating officer shall inform the member concerned in

writing –

(a) that it appears that the member concerned may have been in breach of discipline, and

(b) that he is investigating the matter.

(2) Where it appears to an investigating officer that an alleged breach of discipline may constitute an offence, the

law and practice applicable to the investigation of offences shall apply in relation to the investigation.

(3) The investigating officer shall carry out the investigation either, as he thinks fit, alone or with the assistance of

such other members as he may determine.

10(1) Upon completion of an investigation under Regulation 8, the investigating officer shall as soon as may be

submit to the appointing officer a written report of the investigation, together with copies of any statements

made.

(2) Upon receipt of a report under this Regulation, the appointing officer shall without avoidable delay –

(a) decide whether or not to continue the proceedings under these Regulations, and

(b) if he decides to continue the proceedings, cause to be entered on a form (in these Regulations

referred to as a discipline form) such particulars of the breach of discipline alleged as will leave the

member concerned in no doubt as to the precise nature of it.

(3) A Discipline Form shall be in such form as the Commissioner shall from time to time approve.”

It is to be noted that the Regulations by the use of the phrases “as soon as practicable” in Regulation 8 and Regulation 9, and the

use in Regulation 10 of “as soon as may be” and “without avoidable delay” clearly indicate an intention that there should be no

unnecessary delay in the disciplinary process.

The decision of the High Court

The learned trial judge held that the grounds for the application first arose on 21st January 2005 when the appellant was served with

a book of statements and Form B30. It was then clear that a formal disciplinary inquiry would proceed. Accordingly the application

was not brought promptly nor within the period of six months prescribed by the Rules of the Superior Courts Order 84 Rule 12. On this

basis the learned trial judge refused the appellant the relief sought. Nonetheless the learned trial judge proceeded to consider the

grounds of application relied upon by the appellant.

The learned trial judge found that there had been delay by the respondents but, having regard to the explanations for the delay, the

delay was not unreasonable or excessive. There was no evidence that a disciplinary hearing would as a result of the delay be unfair.

There was no evidence that the appellant was prejudiced in terms of promotion. The learned trial judge adverted to the public

interest in the disciplinary proceedings continuing in the following terms:

“The court must also have regard to the interests of the public as well as those of the complainant with regard to

an application for prohibition of a hearing. Garda discipline is of critical importance. The public should not be denied

the right of investigation and, where deemed necessary, to an inquiry in relation to serious disciplinary allegations

against a member of the Garda Siochána. O’Flaherty J. in McNeill v The Commissioner of An Garda Siochána

[1997] 1 I.R. 483 has referred to the privileges of members of the Garda Siochána and the concomitant obligation

with regard to the discharge of their duties.”

The learned trial judge held that the effect of section 15(2) of the Garda Siochána (Complaints) Act 1986 is to suspend disciplinary

proceedings until determination of the complaints procedure. The learned trial judge then dealt with the history of the disciplinary

proceedings and each element of delay within the same. He concluded that the breach was serious. There was no element of surprise

nor was there any particular suffering on the part of the appellant resulting from the delay other than the necessary concern

regarding the outcome of the process. The delay had been explained by the respondents. Fair procedures had been applied by the

respondents throughout. The delay was not such as to render the disciplinary proceedings unfair, unjust or unconstitutional. Thus

even if incorrect in holding that the application was brought out of time he would refuse the appellant the relief sought.

The Notice of Appeal

The grounds of appeal may be summarised as follows:-

1. The learned trial judge erred in law and in fact in holding the application to be out of time.

2. The learned trial judge erred in law and in fact in finding that the effect of section 15(2) of the Garda Siochána (Complaints) Act

1986 was to suspend the disciplinary procedure.

3. The learned trial judge erred in law and in fact in finding that the delay of one year occasioned by the inadmissible complaint to the

Complaints Board was reasonable and excusable.

4. The learned trial judge erred in law and in fact in finding that the applicant had to prove not only delay but also that it was

unreasonable so as to amount to an unfair procedure and be unjust and unconstitutional.

5. The learned trial judge erred in law and in fact in finding that there was no evidence of prejudice suffered by the appellant.

6. The learned trial judge erred in law and in fact in holding that the public interest required that the disciplinary proceedings should

proceed.

7. The delay was sufficient to require prohibition of continuance of the disciplinary proceedings.

8. The respondent did not apply fair procedures.

9. The concept of reasonable expedition was not dependant on the seriousness of the allegations.

Submissions of the Appellant

Before the High Court there had been no submission by the respondents that the application for leave was out of time. The

respondent accepted that this was so and in these circumstances the issue not having been raised before the High Court this court

should not consider the same.

The appellant relied upon the chronology and submitted that the same discloses inordinate and unreasonable delay. The respondent

has not offered any reasonable explanation for the delay. While the family had verbally complained of the appellant’s conduct they

had not made a written complaint and reserved their right to make a complaint at a later stage. However the Regulations of 1989 do

not require a formal or written complaint. Regulation 8 provides that “where it appears that there may have been a breach of

discipline, the matters shall be investigated as soon as practicable by a member not below the rank of Inspector.” As of the 16th

October 1999 the appellant’s superiors were aware that there may have been a breach of discipline and that required investigation as

soon as practicable.

Section 15(2) of the Garda Siochána Complaints Act 1986 does not prevent disciplinary procedures from being pursued but merely

addresses the issue of duplication of an investigation. In any event it must have been immediately apparent that the complaint

pursuant to the Garda Siochána (Complaints) Act 1989 by reason of being out of time was inadmissible and the disciplinary

proceedings ought not to have been delayed pending finalisation of the complaint procedures.

While the respondent contends that disciplinary proceedings would have been inappropriate while the family reserved their position in

relation to making a complaint this is not justification for failing to proceed with the expedition required by the Regulations. That

expedition is required is made clear by the use within the Regulations of the phrases “as soon as practicable”, “as soon as may be”

and “without avoidable delay”. The appellant refers to the decisions In Re Butler [1970] I.R. 45, Ruigrok v Commissioner of An

Garda Siochána the High Court unreported Murphy J. 19th December 2005, McNeill v Garda Commissioner [1997] 1 I.R. 469 and

McCarthy v Dennedy v Garda Siochána Complaints Tribunal [2002] 2 I.L.R.M. 371.

Submissions of the Respondent

The respondents also relied on Ruigrok v Commissioner of An Garda Siochána and McNeill v Garda Commissioner and in

particular to the dissenting judgment of Denham J. in the latter. Delay in the context of the Regulations should be considered in the

light of the jurisprudence in relation to delay in civil and criminal proceedings. Reliance is also placed on the decision in McCarthy &

Another v The Garda Siochána Complaints Tribunal & Others [2002] 2 I.L.R.M. 341 and the consideration therein of the judgment

in McNeill v Commissioner of An Garda Siochána. Particular reliance is placed on a passage from the judgment of Geoghegan J. at

page 361:-

“On the facts of that particular case Hamilton C.J. came to the conclusion that the obligation based on the Garda

authorities to investigate alleged breaches of discipline as soon as practicable was not complied with and that the

obligation was ‘mandatory’. He then went on to express the view that because of the failure of the Garda

authorities to discharge that obligation all steps taken since the presentation of the written report of the

investigating officer were void and of no effect. This last observation was not essential to the decision made and

the relief granted in the form of an injunction and it may well be that it should be regarded as obiter dicta. There

is nothing in the report of the case to indicate that there had been any particular argument as to whether breach

of an expedition obligation rendered subsequent steps voidable or automatically void. At any rate O’Flaherty J. who

concurred with the Chief Justice in relation to the allowing of the appeal and the granting of the reliefs, expressed

no view on this aspect of the matter. Until it arises in some other case therefore I would express doubt as to

whether breach of an expedition obligation in relation to different steps in a procedure is necessarily tantamount

to failure of a condition precedent to taking of the next step.

But what is important about the McNeill case is that the Supreme Court held by a majority of two judges to one

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

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

entitled to have their investigations heard and determined quickly.”

And at p.362:-

“I would observe in passing that when Hamilton C.J. used the word ‘mandatory’ in the McNeill case it cannot be

regarded as certain that he was doing so in contra distinction to ‘directory’. I take the view that as soon as may

be means as soon may be reasonably practicable in all the circumstances and if I am right about that then it may

not make very much difference whether on a theoretical basis the words requiring expedition in the 1986 Act or

indeed in the Garda Discipline Regulations are to be regarded as mandatory or directory nor indeed on the legal

principles to be applied as there are not much difference between the views expressed by Denham J. in her

minority judgment in McNeill from the views expressed by Hamilton C.J. and O’Flaherty C.J. The difference was in

the application of the principles to the particular facts.”

Further reliance is placed on the decision of McMenamin J. in Kennedy v The Commissioner of An Garda Siochána, unreported, the

High Court, McMenamin J. 14th March 2008. In the course of his judgment in that case McMenamin J. dealt with McNeill v

Commissioner of An Garda Siochána as follows:-

“The decision in McNeill must be seen in the light of the subsequent authorative decision of the Supreme Court in

McCarthy. For the reasons identified earlier, I do not consider that the judgments in McNeill when considered as a

totality are authority for the proposition that ordinary delay jurisprudence should be precluded in a consideration

of the Regulations.”

Finally reliance is placed on the decision in Ryan v Commissioner of An Garda Siochána, the High Court, unreported, O’Neill J. 6th

October 2009. Having regard to the foregoing cases there was no inordinate or inexcusable delay on the part of the respondent.

In the present case it was not practicable to proceed in the absence of the co-operation of the family and in particular the furnishing

of written statements. There was no reality to an investigation or an inquiry without that co-operation.

The period of delay incurred by reason of the complaint pursuant to the Garda Siochána (Complaints) Act 1986 should be excluded

having regard to the provisions of section 15(2) of the 1986 Act.

All relevant circumstances should be taken into account in considering any delay. Particularly relevant in this case is the attitude of

the family. Further, prejudice to the Garda concerned should be taken into account but there was no evidence of prejudice in the

present case. The principal task for a court is to balance the interest of the individual Garda with the interest of the public in having

complaints investigated.

Discussion

The Garda Siochána (Discipline) Regulations 1986 in Regulation 8(1) provides that “matters shall be investigated as soon as

practicable”. Regulation 9(1) provides that an investigating officer as soon as practicable after his appointment shall inform the

member concerned of certain matters in writing. Regulation 10(1) provides that upon completion of an investigation under Regulation 8

the investigating officer shall as soon as may be submit a written report to the appointing officer. The Regulations accordingly

envisage that there should be no unnecessary delay in the disciplinary process. In each case the Regulations employ the word “shall”.

The first task for the court, accordingly, is to interpret these provisions of the Regulations. In Howard v Boddington [1877] 2 P.D.

203 Lord Penzance dealt with the distinction between imperative and mandatory provisions as follows:-

“The real question in all these cases is this: a thing has been ordered by the legislature to be done. What is the

consequence if it is not done? There may be many provisions in Acts of Parliament which, although they are not

strictly observed, yet do not appear to the court to be of that material importance to the subject matter to

which they refer, as that the legislature could have intended that the non-observance of them should be followed

by a total failure. On the other hand, there are some provisions in respect of which the court would take the

opposite view I believe, as far as any rule is concerned, you cannot safely go further than that in each case you

must look to the subject matter; consider the importance of the provision that has been disregarded, and the

relation of that provision to the general object intended to be secured by the Act; and upon a review of the case

in that aspect decide whether the matter is what is called imperative or only directory.”

This was the approach followed by the Supreme Court in The State (Elm Developments Limited) v An Bord Pleanála [1981]

I.L.R.M. 108 at p. 110:-

“Whether a provision in a statute or statutory instrument, which on the face of it is obligatory (for example, by

the use of the word ‘shall), should be treated by the courts as truly mandatory or merely directory depends on

the statutory scheme as a whole and the part played in that scheme by the provision in question. If the

requirement which has not been observed may fairly be said to be an integral and indispensable part of the

statutory intendment, the courts will hold it to be truly mandatory, and will not excuse a departure from it. But if

on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance

of the aim and scheme of the statute non-compliance may be excused.”

Essentially in each case the function of the court will be to identify the statutory intention to be imputed to the Oireachtas. In

Charles v Judicial and Legal Service Commission [2003] LRC 422 Tipping J. giving of the opinion of the Privy Council said:-

“At the outset their Lordships observe that it seems highly unlikely that the Commission could have intended that

breaches of time limits at the investigation stage would inevitably prevent it from discharging its public function

and duty of enquiring into and, if appropriate, prosecuting relevant indiscipline or misconduct.”

Tipping J. went on in that case to hold that while there were delays they were in good faith and were understandable, that the

appellant suffered no material prejudice, that there were no fair trial considerations and no fundamental human rights in issue. In

those circumstances failure to observe the time limits did not prevent continuance of disciplinary proceedings.

In R. v Soneji and Anor [2006] 1 A.C. 340 the House of Lords was concerned with time limits in confiscation proceedings following

conviction of a criminal offence. Lord Steyn approved of the analysis of the High Court of Australia in Project Blue Sky Inc. v

Australian Broadcasting Authority [1998] 194 C.L.R. 355 which included the following passage:-

“The classification of a statutory provision as mandatory or directory records a result which has been reached on

other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining

the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself

whether compliance with the provision is mandatory or directory and, if directory, whether there has been

substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it

was a purpose of the legislation that an act done in breach of the provision should be invalid.”

Lord Steyn concluded as follows:-

“Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the

rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness.

Instead as held in Attorney General’s Reference (No. 3 of 1999), the emphasis ought to be on the consequences of

non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity.

That is how I would approach what is ultimately a question of statutory construction.”

On the foregoing analysis two questions arise for consideration by the court:-

1. Did the legislature intend total invalidity to result from failure to comply with the statutory time limit?

2. If the answer to that question is yes no further question arises. If the answer is no then the court must consider whether there

has been substantial compliance which would depend upon the facts of each individual case and will involve consideration of whether

any prejudice has been caused or injustice done by regarding an act done out of time as valid.

In McNeill v Commissioner of An Garda Sochána [1997] 1 I.R. 469 McCarthy J. said:-

“The disciplinary regulations require that the matter should proceed with a degree of expedition at every stage.

And for good reason; members of the Garda Siochána have special privileges as well as special responsibilities not

shared by ordinary citizens; therefore, if suspicion descends on a member of the Garda Siochána it is important

from a public policy point of view that the matter should be investigated and dealt with quickly. The air should be

cleared one way or the other. I am talking of matters of substance, needless to say, and not with every idle word

that may be uttered in a locality from time to time. Similarly, from the perspective of members of the Garda

Siochána; they are entitled to hold their heads up in the community in which they serve; they are entitled to

expect that if a charge is contemplated that it should be brought forward with a degree of expedition and that

they should be given a chance to meet it.”

In that passage the two interests involved in Garda disciplinary proceedings are identified – the interest of the individual Garda in

having his name cleared and the public interest that allegations of breaches of discipline on misconduct should be investigated.

In a dissenting judgment Denham J. outlines an approach to the consideration of delay in Garda disciplinary proceedings. The starting

point was the constitutional tenet of reasonable expedition. Thereafter she looked at specific prejudice to the member. She then had

regard to whether the delay was unreasonable delay in all the circumstances of the case. She suggested some factors which might

result in unfairness to the member and in particular suspension without pay and the effect of pending or depending disciplinary

proceedings in terms of worry and concern.

I am satisfied that in having regard to the dual purpose of the statutory requirement for expedition in Garda disciplinary proceedings

that in each case regard must be had not just to the interests of the individual Garda concerned, but also to the public interest in

maintaining public confidence in the Garda Siochána. It was, of course, open to the legislature to provide a strict time limit for each

stage of the disciplinary proceedings or an overall time limit but this was not done. I am satisfied that it was not the intention that a

failure to proceed with expedition as required by the Regulations will necessarily result in disciplinary proceedings becoming void. Each

case will turn on its own particular circumstances. The court will have regard to all the circumstance in determining whether or not

the failure progress the disciplinary proceedings has been such that to allow them to continue would be to disregard the legislative

intention.

Of relevance to this particular case is the enactment of the Garda Siochána (Complaints) Act 1986 which provided for the

establishment of the Garda Siochána Complaints Board and the Garda Siochána Complaints Appeal Tribunal to which a member of the

public may complain about the conduct of any member of the Garda Siochána. The Act provides that the membership of the Board

shall comprise at least three who are either a practising barrister or a practising solicitor of not less than ten years standing. The

membership of the board may not include any person who is or has been a member of the Garda Siochána, save one. Each Tribunal

under the Act consists of three persons one of whom shall be a practising barrister or a practising solicitor of ten years standing. The

Appeal Board under the Act has as chairman a judge of the Circuit Court and one of the ordinary members must be a practising

barrister or a practising solicitor of ten years standing. There are accordingly in existence two separate disciplinary procedures, one

instituted and conducted within the Garda Siochána and one instituted by a member of the public and conducted independently of

and outside the Garda Siochána before an independent tribunal with an independent appeal board.

For the respondent it is submitted that precedence should be afforded to the procedures under the Garda Siochána (Complaints) Act

1986 and for this purpose reliance is placed on section 15(2) of the Act which provides as follows:-

“(2) Where –

(a) conduct of a member is being or has been investigated under the Regulations;

(b) the Commissioner had not appointed a member or members of the Garda Siochána to hold an inquiry

under the Regulations into the conduct and

(c) a complaint is made in relation to the conduct.

the complaint shall be investigated under this Act and the investigation under the Regulations, and any statements

made in connection therewith, shall be deemed to have been made under and for the purposes of this Act.”

The enactment of the 1986 Act indicates that the legislature envisaged in relation to complaints made by a member of the public an

independent inquiry rather than an internal Garda inquiry is to be preferred as more likely to inspire public confidence. The Regulations

are available in relation to discreditable conduct, misconduct towards a member, neglect of duty, disobedience of orders and other

conduct mentioned in the schedule to the Regulations and where no complaint is made by a member of the public. The Act is

concerned with conduct described in the fourth schedule to the Act. It is clear however that conduct may come within both the

Regulations and the Act. The provisions of section 15(2) confirm me in this view.

The events giving rise to the disciplinary proceedings occurred on the 15th/16th October 1999 and complaint was made in relation to

the same on either the 15th or 16th October 1999. The complainants were the parents of the young woman concerned who expressly

reserved their right to make a complaint, that is to avail of the Act of 1986. On the 22nd November 2002 the complainants requested

a thorough investigation of the conduct complained of and the Garda authorities set about this investigation. The parents had

intended to make a complaint once the murder of their daughter had been solved: as yet this has not occurred. On the 26th

November 2002 the complainants furnished statements detailing the complaint. On the 23rd January 2003 Chief Superintendent

Donohue and Inspector Featherstone who were conducting the investigation met with the family and followed this up with a further

meeting on the 23rd March 2003 at which the complainants indicated their decision to pursue a complaint under the Act of 1986 and

they did this. On the 25th March 2004 the Garda Siochána Complaints Board deemed the complaint inadmissible and on the 4th May

2004 Chief Superintendent Rock was appointed to investigate the appellants conduct under the Regulations. I am satisfied that

thereafter the matter was dealt with appropriate expedition. What the court is concerned with, accordingly, is the delay between the

15th/16th October 1999 and the 4th May 2004 which it must be accepted is of considerable duration. A particular circumstance in

this case is the following. The complainant’s daughter was murdered on the 14th September 1999. The period of the Garda

investigation immediately following the murder must have been traumatic for the family. The distress as a result of the alleged

conduct about which complaint is made clearly added to that. The complainants, the deceased’s parents, expressly reserved their

right to make a complaint pursuant to the Act of 1986 once their daughter’s murder was solved and maintained this position

throughout. It was the intention of the legislature in passing the Act of 1986 to give precedence to procedures under the Act over

those under the Regulations where a complaint from a member of the public is involved as better serving the legislative intention and

maintaining public confidence. In these circumstances it is understandable that in deference to the parents wishes proceedings under

the Regulations did not proceed as they would have were it not for the parents reservation of the right to proceed under the Act. To

ignore the parents and family’s wish and proceed pursuant to the Regulations could only have added to their distress at a very

difficult time.

There is thus an explanation for the period of delay but it remains necessary to consider whether the delay has resulted in an

interference with the applicant’s right to a fair hearing or if he has been otherwise prejudiced. As to the former the applicant has been

aware of the complaint and of its nature as of the 16th October 1999. It is not suggested by the applicant that his entitlement to a

fair hearing has been prejudiced.

However the applicant contends that he has been prejudiced in two ways:-

1. The fact that disciplinary proceedings were pending or depending caused him concern and anxiety.

2. He had applied for a position as a detective prior to the events giving rise to the complaint. He had been

interviewed by the Detective Unit and had been recommended for the position. He was notified that he had been

successful and had been placed on the reserve list. Had he been appointed he would have become entitled to

additional allowances, increased overtime and perhaps better hours. In September 2003 he was made aware that he

had been removed from the reserve list and he has not been appointed to the Detective Branch.

Each of these matters are appropriate to be taken into consideration by the court. However every complaint will lead to concern and

anxiety and it is not something particular to the applicant in this case. Of itself this will not be a reason which will justify prohibition of

disciplinary proceedings.

It is also the case that pending or depending disciplinary proceedings, as in this case, may result in an inability to advance one’s

career or profession. Where the complaint of misconduct is subsequently found to be unsubstantiated this will result in hardship. But it

is hardship which is an unavoidable consequence of the complaint. In short the court in circumstances such as the present must

balance the public interest against the prejudice to the individual concerned. The court is satisfied that in this instance the balance

falls in favour of the public interest and in favour of the disciplinary process proceeding. The public interest in this case should prevail.

Decision

Having regard to the foregoing I would affirm the judgment and order of the High Court and dismiss the appeal.