Supreme Court holds breach of 'as soon as practicable' investigation timeline is directory, not mandatory, so proceedings remain valid.

THE SUPREME COURT

Record No. 174/07

FINNEGAN J.

O’DONNELL J.

MCKECHNIE J.

Between:

Ian Gillen

APPELLANT

AND

The Commissioner of An Garda Síochána, Ireland and

The Attorney General

RESPONDENT

JUDGMENT of O’Donnell J. delivered the 26th day of January 2012

1 This case is already the subject of two admirable judgments by my colleagues, coming albeit to opposite conclusions. In the

ordinary course, I would be content to express my respectful agreement with the judgment of Finnegan J. However, this is an

important area in which uncertainty must necessarily give rise to the possibility of judicial review and consequent delay in a process

which all are agreed should be carried out with expedition. Much of that confusion and uncertainty stems from the interpretation of

the decision of a three person formation of this court in McNeill v The Commissioner of An Garda Síochána, Ireland and the Attorney

General [1997] 1 IR 469 and the subsequent observations on that case of a five person formation of the court in McCarthy &

Dennedy v Garda Síochána Complaints Tribunal [2002] 2 ILRM 371. Therefore, I think it is desirable and perhaps necessary to set out

my reasons for concluding that, although there was in this case a failure to comply with the obligation of expedition contained in

Regulation 8 of the Garda Síochána (Discipline) Regulations 1989 (SI No. 94/1989) (“the Regulations”), that failure did not invalidate

the disciplinary proceedings commenced against the appellant, and does not prevent those proceedings from being brought to a

conclusion. The requirement of expedition contained in the Regulations is, in my judgment, in the time honoured phrase, directory

rather than mandatory.

2 The unhappy background to this case is set out in some detail in the judgments of Finnegan and McKechnie JJ. and it is

unnecessary to repeat it here. It is desirable however to make some observations on the conclusions to be drawn from those facts.

3 First, there is no doubt in my view that the step required by Regulation 8, namely appointment of an investigating officer not below

the rank of an inspector “as soon as practicable” after it appeared that there may have been a breach of discipline, was not complied

with in this case. This has been lucidly demonstrated by the analysis carried out by McKechnie J. The only question is the

consequence of that breach.

4 Second, it should be observed that the standard, while perhaps not quite as peremptory as a requirement that a step be taken

“forthwith” is nevertheless demanding in that it requires action “as soon as practicable”. It may be that the phrase has some inherent

flexibility which courts have sought to exploit in the interests of justice, however it is notable that the obligation is not qualified e.g.

by “reasonableness”. As Murphy J. pointed out in Ruigrok v The Commissioner of An Garda Síochána, Ireland and the Attorney

General (unreported, High Court, 19th July 2005) at para. 12.5, the derivation of the word practicable shows that the word normally

means “feasible” or “doable”. The meaning of the phrase was subjected to close analysis by Budd J. in Re Butler [1970] 1 IR 45. He

concluded at p.55 that a determination of what was “practicable”, involved a consideration of the difficulties that should properly be

taken into consideration in justifying any delay. In deciding whether the obligation in that case to provide notice of an accident “as

soon as practicable” had been complied with, account could only be taken of such difficulties as made the giving of the notice “not

feasible or capable of being carried out in action”. He continued at p. 55 of the report:

“In accordance with the views I have just expressed, the words in the condition “as soon as practicable” should be

construed in the sense of “capable of being…carried out in action…feasible”. In deciding whether or not the applicant has

complied with condition No. 1, account can only be taken of such difficulties as make the giving of notice not feasible or

not capable of being carried out in action. Any view that the applicant may have had that there was no point in giving

notice to the company, because of the applicant’s believe in its inability to pay, is irrelevant. Such a view does not

create any difficulty in giving notice or make it not feasible to give notice. Further, from the definition of the word

“practicable” which I have accepted, it follows that the type of difficulty that one has to consider in deciding whether or

not it was practicable to give notice sooner than was done is one of a practical nature such as a difficulty arising

through illness or through a breakdown in communications, or some other difficulty of the same nature.”

5 The test, as exemplified in Re Butler, is essentially an objective one: could the notice have been given earlier as a matter of

practicality? There was no room for more subjective considerations. That this is a demanding and somewhat unforgiving standard is

illustrated by the landmark case O’Donovan v. Attorney General [1961] IR 114 where Budd J. had occasion to interpret the

requirement contained in Article 16.2.3 of the Constitution that the ratio of TDs to a population should “so far as it is practicable be

the same throughout the country”. As experience since 1960 has shown, natural boundaries created by streets, roads, rivers,

parishes and administrative counties, have all had to give way on some occasions before the requirements of Article 16.2.3 because it

was feasible or doable to do so.

6 Third, it is also fair to observe that the standard in question is one which, when applied to human affairs rather than mathematical

calculation, is regularly breached. For example, activities as important as the passing of legislation or the making of governmental

decisions, to those as mundane as the payment of bills, are rarely carried out on a timescale which is far from “as soon as

practicable”. This is because such activities are carried out by human beings who have other tasks to perform and have limited

reserves of energy, varying levels of ability, attention and enthusiasm, or who may be distracted, demoralised, suffering from

domestic crises, or who may simply find their attention more readily turning to other events which seem more absorbing than the task

at hand. To take the example of legal proceedings, with which disciplinary proceedings may reasonably be compared, it is rare to find

set of proceedings which can be said to have been drafted, commenced, served, responded to, pursued, set down, heard and

determined “as soon as practicable”. If, therefore, the Minister who made the Regulations intended that a failure to act “as soon as

may be” or “as soon as practicable” would automatically result in invalidity, then it was to be anticipated that there would be a fairly

high failure rate in the investigation or prosecution of allegations of breach of garda discipline.

7 Fourth, there is little dispute as to how the failure to appoint an investigating officer “as soon as practicable” occurred in this case.

The killing of a young woman in the circumstances of this case captured and retained public attention, representing as it does, the

dreadful realisation of one of the most feared nightmares of any family who watches a teenage daughter or sister go out for an

evening’s entertainment. The trauma of such an event for the family of a victim is almost unimaginable. Any garda investigation was

bound to intrude upon the family. The appointment of a liaison officer to ensure that those matters were dealt with sensitively was an

entirely appropriate and necessary step. The breaches of discipline alleged against the appellant were also matters of crass

insensitivity. That is why they were brought to garda attention by the family. It should be recorded that those matters are denied by

the appellant, but for present purposes, the fact that these matters have been brought to garda attention by the family of the victim

meant that the family believed them to be true and were seriously offended. The fact that these matters were raised by the family of

a murder victim which was still the subject of an active murder investigation, meant that further dealings with the family on this

separate question of garda discipline was even more fraught. At a human level at least, the desire to defer to the views of a family

must have been almost overwhelming, even though if was understandably difficult to discern at any given stage the course of action

desired by the family in relation to the incident in respect of Garda Gillen. It would be entirely understandable that the principal

concern of the family would have been not to have been distracted by any matter of potential garda misbehaviour at all. It is not

surprising, to me at any rate, that when conscious attempts are made to tread carefully, the result is often fumbling mis-steps,

further mistakes, misunderstanding, annoyance and often delay.

8 This case presents an investigation where there was a delay in appointing an investigating officer. That delay was, in my judgment,

understandable and indeed excusable. The delay was not such that it rendered it unfair to continue the disciplinary proceedings or

caused prejudice to the appellant in the defence of the proceedings. It was, however, a clear failure to comply with the Regulation 8

requirement that an investigating officer be appointed “as soon as practicable”. The question is whether that breach simpliciter

renders invalid the entire disciplinary proceedings. This involves determining whether compliance with the requirement of urgency in

Regulation 8 is a condition precedent to further proceedings or as it is sometimes put, whether Regulation 8 is mandatory or merely

directory. I am content to address the question in these terms, although I agree with Finnegan J. that cases such as Charles v.

Judicial and Legal Services Commission [2003] 1 LRC 422, R v. Soneji & Anor [2006] 1 AC 340 and the decision of the High Court of

Australia in Project Blue Sky Inc. v. Australian Broadcasting Authority [1998] 194 CLR 355 cast a valuable light upon the exercise

which the court is to carry out. In particular, I would respectfully adopt Lord Steyn’s observation in Soneji at p.353, that “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”. I would also agree with my colleagues that the resolution of the issue is essentially a matter of

statutory interpretation. Before addressing that issue, however, it is necessary to consider the effect of previous decisions of the

Superior Courts dealing with the interpretation of the Regulations.

9 An analysis of McNeill and its subsequent treatment by the Superior Courts would be a modest but illuminating topic for an

undergraduate class on legal systems and the doctrine of precedent. However, it does not seem that the specific issue raised here –

whether the obligations imposed by the Regulations are mandatory or directory – was argued in that case. That is apparent not only

from the report of the argument of counsel in the official reports, but also from the fact that the issue was not addressed either in

the dissenting judgment of Denham J. (as she then was) or in the concurring judgment of O’Flaherty J. The mandatory/directory issue

in statutory interpretation is well recognised, and if it was the dispositive issue in the case, it is impossible that it would not have

been addressed specifically by both judges. Even though Hamilton C.J. referred to the provisions as “mandatory” it is open to

considerable doubt as to whether he had the mandatory/directory distinction in mind. In other words, although one judge used the

term “mandatory”, it cannot be said that the ratio decidendi of the case - in the sense of the reasons given by the court for its

decision- was that the Regulations were mandatory rather than directory. At yet another level, however, the ratio of a case is to be

determined by an analysis of what the court did, rather than what it said. In this regard, I accept that it is possible to analyse the

case as necessarily involving a conclusion that the requirements of Regulation 8 were mandatory. Even at that level, however, the

fact that the issue was not explicitly expressed in argument, and was not to the forefront of the minds of the court deciding the

case, robs the case of much of its precedential effect. At a still further level, the ratio of any case, and its binding effect, is

determined not by what the court itself decides, or indeed any independent analysis of the decision, but rather the manner in which

subsequent courts treat the decision. It is accordingly necessary to consider the subsequent case law.

10 In McCarthy & Dennedy v. The Garda Síochána Complaints Tribunal [2002] 2 ILRM 341, a Supreme Court comprised of Keane C.J.,

Murphy, Murray, McGuinness and Geoghegan JJ. had to address the interpretation of a broadly similar regime established under the

Garda Síochána (Complaints) Act 1986. Murray J. delivered a single judgment, with which all other members of the court agreed,

dismissing an appeal on the manner in which a complaint should be formulated. Geoghegan J. delivered a judgment dealing with the

other issue in the case which allowed the appeal on the grounds that there had been such delay in the processing of the complaint as

to preclude determination of it. It should be noted that the case arose out of an incident of some notoriety and was clearly the

subject of careful consideration by the court. Geoghegan J. dealt specifically with the requirement under the Act that steps be taken

“as soon as may be”. The appellant’s interpretation of those provisions relied heavily on McNeill. It is significant therefore that

although allowing the appeal, Geoghegan J. expressed serious reservations about the decision in McNeill and in particular whether it

could be taken as authority for the proposition that the requirements of Regulation 8 could be treated as mandatory rather than

directory. Given the manner in which the case was disposed of, it must be taken that these observations on the earlier decision of

the Supreme Court were made with the considered approval of all members of that distinguished court.

11 Geoghegan J. observed, correctly in my view, that while Hamilton C.J. had used the word “mandatory” it could not be regarded as

certain that he was doing so in contra-distinction to “directory”. He also said, at p.361 of the report:

“On the facts of that particular case, Hamilton CJ came to the conclusion that the obligation placed 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 by 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 release, 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 the taking of

the next step.”

12 In my view, these remarks are of considerable significance. They amount to an indication – although not a binding determination –

that McNeill could not be treated as authority for the proposition that failure to appoint an investigating officer as soon as practicable

rendered any subsequent step in an investigation and disciplinary proceedings voidable. At a more general level, the remarks were an

invitation to subsequent courts to consider whether McNeill could be distinguished upon this basis. This is what occurred in Kennedy v

The Commissioner of An Garda Síochána, Ireland and the Attorney General (unreported, High Court, 14th March 2008), where

McMenamin J. concluded that McNeill was not binding authority as to whether the Regulations were mandatory or directory.

Accordingly, the court was entitled to address the issue, and concluded, correctly in my view, that the Regulations were directory

only. Subsequently in Ryan v The Commissioner of An Garda Síochána, Ireland and the Attorney General (unreported, High Court, 6th

October 2009), O’Neill J. sought to reconcile McNeill and Kennedy and ultimately concluded that it was a matter of balancing the delay

against the importance and significance of the complaint. This conclusion is, however, clearly inconsistent with any view that McNeill

determined that simple breach of the expedition obligation contained in Regulation 8 was sufficient to invalidate the procedures. In my

view, the discussion in these cases and the contrary approach in Ruigrok only emphasises the desirability of resolving this matter

clearly. Furthermore, it seems clear to me that the combination of the fact that the mandatory/directory issue does not appear to

have been argued in McNeill, , and the treatment of that decision in the McCarthy & Dennedy decision means that McNeill cannot be

regarded as binding authority on the issue. It therefore falls to this court to consider the matter afresh.

13 I agree with my colleagues that the issue is essentially one of interpretation of the Regulations. In that regard, I also agree that

useful guidance is provided by the judgment of Henchy J. in The State (Elm Motors Ltd) v An Bord Pleanála [1981] 1 ILRM 108, where

he said at p.110 that:

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

of the word “shall”), should be considered by the courts as truly mandatory or directory depends on the statutory

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

As Finnegan J. points out, the above passage is consistent with the well known words of Lord Penzance in Howard v Boddington

[1877] 2 BP 203, where he said at p.221 that:

“You cannot safely go further than that in each case you must look at 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 in turn, as the High Court of Australia observed in Project Blue Sky at p.93 may involve asking “whether it was a purpose of the

legislation that an act done in breach of the provision should be invalid”. In each case, the purpose of the legislation is an important

consideration. That purpose is to be discerned from an analysis of the Regulation set against its factual and legal background. This

exercise involves considerably more than a consideration of what is meant by the word “shall”. As the extract from the judgment of

Henchy J in Elm Motors illustrates, almost all cases in which a regulation has been held to be directory only will involve some such

word, and indeed often if not invariably the word “shall”.

14 The first thing to observe is that the question at issue here – the consequences of a breach of the expedition obligation – is not

explicitly addressed in Regulation 8 itself. The question for the court is to interpret that silence on the topic. One way of approaching

this question is to consider whether a phrase such as “and if such appointment is not made as soon as practicable, the process shall

be invalidated” could be inserted in the Regulation. This involves an analysis of the language and syntax used by the Regulation, the

legal context and perhaps most importantly the purpose sought to be achieved by the Regulation.

15 At the outset of this inquiry, the very fact that there is no express statement in Regulation 8 that breach of the obligation of

expedition will give rise to invalidity should not be overlooked. It might be said that this is a neutral factor since there is no express

statement to the contrary. In my view however (and this is reinforced by a consideration of the purpose of the Regulation which I will

consider later in this judgment) such consequential invalidity would be a striking feature and one therefore which might be expected

to be expressly stated, and not left to be inferred from the overall statutory scheme.

16 Second, it is noteworthy that the Regulations are couched in a somewhat vague form. It is particularly notable that the triggering

obligation for the requirement to appoint an officer “as soon as practicable” is formulated in the passive voice. It is only when “it

appears” that a breach of the regulations has occurred, that the time begins to run for the appointment of the investigating officer.

The Regulations do not identify the person to whom this should appear, or the circumstances in which it will be held to have

appeared. In circumstances where the interpretation contended for by the appellant necessarily contemplates a very short period

elapsing before it can be said that something has not been done “as soon as practicable” and the dramatic and fatal consequence of

invalidity for breach, it is more than surprising that the commencement of that period is so nebulous.

17 This gives rise to a further consideration. The effect of the interpretation contended for by the appellant in this case is to make

the period “as soon as practicable” akin to a form of limitation in the sense that after that period no action can be brought. As

observed above, the period involved in the statutory phrase “as soon as practicable” can be very short indeed. It can be a matter of

months, weeks or even days. It is relatively rare that such short limitation periods are provided for by law because their capacity for

potential injustice is recognised. It is rarer still that any such short period is unaccompanied by a power of the court to extend the

period for good reason. The combined absence of an identified staring point, a specified period and a discretion to extend that period,

all suggest that Regulation 8 was not intended to have the dramatic and fatal consequences that the appellant contends.

18 Like McKechnie J., I agree that Regulation 8 must be viewed in the context of the requirements contained in the other provisions

of the Regulations. As is impressively demonstrated at para. 39 of his judgment, Regulations 8-10 all contain a number of steps all of

which must be taken either “as soon as practicable”, “as soon as may be”, or “without avoidable delay”. I respectfully agree that this

is a powerful indicator of the Regulations’ desire that disciplinary matters should be processed with urgency, and that Regulation 8

should be so interpreted. But when we come to the issue which arises here as to the consequences of a failure to comply with such a

provision, I would respectfully draw a different conclusion from these series of provisions. If all these provisions are mandatory in the

sense that a failure to comply with any of them, no matter how trivial, will result in the invalidity of the entire procedure, then the

Minister has erected a sequential limitation periods which together constitute a formidable series of hurdles to be surmounted before a

disciplinary matter can be concluded. The issue can be illustrated by considering the least significant obligation, and a relatively trivial

breach thereof. If there was a delay in transmitting the investigating officer’s report to the appointing person, then that would

necessarily be a breach of the obligation to report “as soon as may be”. It seems hard to believe, however, that the legislature would

have intended the entire process to be terminated on the basis that that step was delayed for a relatively short period, which might

be no more than a few days.

19 These considerations may be straws in the wind, but they all point in the same direction and towards the interpretation of the

Regulations as directory. They are, in my view, powerfully reinforced by a consideration of the purpose of Regulation 8.

20 The general purpose of the Regulations has already been identified, most pertinently in the McNeill and McCarthy decisions, and

there is therefore little dispute about their general purpose and the reason for their emphasis on speedy disposition of disciplinary

matters. In my view, the fact that the Garda Síochána is a disciplinary force is of the utmost importance. It is critical both to the

operation of the force and to public confidence in it that disciplinary matters be dealt with speedily. Any delay would be corrosive of

the discipline which is essential to the organisation and would consequently undermine public confidence in the gardaí. That is so

whether or not the matter originated in a complaint by a member of the public. This was the objective identified by O’Flaherty J. in

McNeill when he said at p.485:

“[i]f suspicion descends on a member of the Garda Síochána 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…From the

perspective of members of the Gardaí Síochána: 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 it should be brought forward with a degree of

expedition and they should be given a chance to meet it: it may be, in certain circumstances, by admitting a breach of

discipline but, in other circumstances, by disputing the allegation on which the charge was based.”

21 It is important to note that the statutory purpose can only be achieved if the disciplinary proceedings are resolved on the merits.

Premature determination of the process on the grounds of lapse of time not only fails to achieve the statutory purpose, but positively

undermines it. As O’Neill J. stated in Ryan, at para. 5.13:

“Another aspect of the public interest must also be weighed in the balance and that is where serious charges are levelled

against a garda, which potentially seriously damage the reputation of the garda in question and as a necessary

consequence damage the reputation of the Garda Síochána as a police force, it is very important, if not essential, if

the member in question remains in the force, that the allegations of breach of discipline in question not only

should be dealt with expeditiously but, also, the process must be permitted to proceed to an adjudication on

those allegations. If the process does not proceed to adjudication, the member affected will not have his name

cleared, if he is innocent of the charges, and An Garda Síochána as a police force will inevitably suffer reputational

damage.” [Emphasis added].

22 This is in my view a critical consideration. Whether the disciplinary issue is well founded or unjustified, none of the objects sought

to be achieved by the Regulations will be furthered by a premature termination of the process on technical grounds. As O’Neill J.

observes, if the disciplinary matter is ill founded, it will be of continuing and unjust damage to both the force and the individual since

the suspicion of wrongdoing will remain over that individual. But it is also useful to consider this situation from the perspective where

it is a well founded disciplinary issue which is terminated without being resolved on the merits. It is difficult to imagine anything more

corrosive of the internal discipline and external respect for the gardaí than a situation where a member who is guilty of serious

disciplinary breaches remains in the force with impunity, by reason of a failure to investigate with sufficient speed. To interpret the

Regulations as requiring invalidity as a consequence of the breach would therefore run entirely counter to their acknowledged

purpose.

23 I agree that the Regulations must also have regard to the interest of the person the subject matter of the process, although

principally to the extent that his or her interests are compatible with the broader public interests identified above. A person against

whom there is an unjustified charge, or who may wish to resolve a charge, has a legitimate interest in having the matter dealt with

speedily so that their reputation is vindicated. That object is not achieved if the process is terminated without reaching a decision on

the merits. It may well be that delay is the friend of the person who is in truth guilty of a breach of discipline. However, I do not

consider that the Regulations can be understood as showing any solicitude for that person’s position.

24 A related feature of the Regulations identified by Geoghegan J. in McNeill and touched on by O’Neill J. in Ryan is that the garda

disciplinary procedure is purely internal and involves gardaí commencing, investigating, and determining disciplinary matters against

fellow members of the force. There may be public concern that an inquiry will not proceed against a colleague with enthusiasm or

expedition is therefore inevitable and that investigation may be discreetly derailed if there is unjustified foot dragging in the

investigation e.g. an important witness may no longer be available or recollections may have dimmed to the point where it is not

longer safe to make a determination of breach. Like Geoghegan J., I consider that one of the objectives of the requirement of urgency

is to protect against such a possibility and consequently to maintain overall public confidence in the process, and ultimately in the

force itself. I do not see how the fact that the disciplinary process may, or may not, be initiated as a result of a complaint by a

member of the public, in any way affects this issue. Public confidence in the force depends in part upon a confidence in the manner in

which the disciplinary process will be discharged, irrespective of the source of the information giving rise to that process. Accordingly

I consider that a purpose of the Regulations in emphasising the requirement of urgency was to avoid the loss of public confidence

that would follow if it were perceived that disciplinary matters could be delayed for a prolonged period and in some cases defeated,

by garda inaction. Again, if the question of interpretation of Regulation 8 is approached in the context of this identified purpose, the

conclusion points against invalidity, for breach however trivial. Not only would a termination of the disciplinary process on grounds of

failure to process the matter with appropriate speed undermine, rather than reinforce, public confidence in the force, but by imposing

such a demanding schedule with the consequence that the whole process will terminate on breach, the Regulations would provide a

perverse incentive to the very activity sought to be discouraged by them. That is because short, apparently innocuous, or even

excusable periods of delay could fail the test set by the regulatory standard “as soon as is practicable”. This would make it more

rather than less likely that there would be suspicions of internal sabotage of the process. Yet again this is a powerful indicator that

the Regulations were not interpreted as providing that breach of the urgency provisions should lead to invalidity.

25 These considerations make it plain in my view that to interpret the Regulations in the manner contended for by the appellant is

inconsistent with their structure, syntax and overall purpose. It is, as Henchy J. observed, useful to consider the importance of the

provision breached. In this regard, however, I think it is necessary not to consider the general provision which was breached but

rather the specific obligation contained within the Regulation which was not complied with. In this case the Regulation imposes at

least two relevant obligations, that of the appointment of an investigating officer, and an obligation of expedition “as soon as

practicable”. The appointing obligation was performed: it was the expedition obligation which was breached. However, to read that

obligation as being of such importance to the Regulations that invalidity should attend its breach, would involve interpreting the

Regulations as saying that while appointment and expedition are necessary, if the investigating officer is not appointed as

expeditiously as possible, it would be better if there was no investigation at all. Nothing in the Regulations supports such an

interpretation, and as already observed, it would be plainly inconsistent with the identified purpose of those Regulations.

26 The rationale for the repeated references to urgency and expedition in the Regulations remains to be examined. In the first place,

such urgency is a component in maintaining public confidence for the reasons already outlined. The fact that breach is not necessarily

attended by a sanction of invalidity does not mean that the provisions are ineffective. It is to be expected that members of a

disciplined force, whose function it is to enforce the law, will not lightly disregard the requirements of the law. Furthermore, the

fairness of the investigative procedure is determined in part by judging what transpired in fact, against the template of the procedure

contemplated by the Regulations. Accordingly in most cases which it is said that there has been culpable delay rendering the process

unfair, one of the matters which the court will take into account is the extent to which the process has deviated in fact from that

contemplated by the Regulations. There is every reason therefore why the Regulations should emphasise urgency, but those reasons

do not support a conclusion that invalidity should result from a breach of that demanding requirement.

27 Finally, as Geoghegan J. observed in McCarthy & Dennedy, it appears that the English courts have interpreted broadly similar

requirements in their police disciplinary regulations as directory rather than mandatory (see R v. Secretary of State for the Home

Department Ex parte, Miller (unreported) 4th May 1983, D.C.; R v. Chief Constable of Merseyside Police Ex parte, Calveley [1986] 1

QB 424). Although this line of authority was referred to in some of the material submitted to the court, it was not otherwise opened

or relied upon. Accordingly, I have not addressed it for the purpose of this judgment.