S.I. No. 214/2007 - Garda Síochána (Discipline) Regulations 2007

1. Discreditable conduct, that is to say, conducting himself or herself in a manner which the member knows, or ought to know, would be prejudicial to discipline or reasonably likely to bring discredit on the Garda Síochána.

2. Discourtesy, that is to say, failing to behave with due courtesy towards a member of the public.

3. Misconduct towards a member, that is to say -

(a) assaulting the member,

(b) oppressive or insubordinate conduct towards the member, or

(c) using abusive or insulting language to him or her.

4. Neglect of duty, that is to say, without good and sufficient cause -

(a) failing or neglecting -

(i) properly to account for any money or property received by him or her in his or her capacity as a member, or

(ii) promptly to carry out any lawful order or to do any other thing which it is his or her duty to do,

or

(b) doing anything mentioned in subparagraph (a)(ii) in a negligent manner.

5. Disobedience of orders, that is to say, wilfully disobeying any lawful order, whether written or oral, without good and sufficient cause.

6. Falsehood or prevarication, that is to say, in his or her capacity as a member -

(a) making or procuring the making of -

(i) any oral or written statement, or

(ii) any entry in an official document or record,

that, to the member's knowledge, is false or misleading,

or

(b) with a view to deceiving any person -

(i) destroying or mutilating any official document or record, or

(ii) altering or erasing or adding to any entry in it.

7. (a) Breach of confidence, that is to say, making an unauthorised communication in relation to any information which comes to the member's knowledge in the course of his or her duties and was not available to members of the public.

(b) In subparagraph (a), “unauthorised communication” means any communication other that a communication made in the execution of his or her duties or authorised by the Commissioner.

8. Corrupt or improper practice, that is to say -

(a) soliciting or receiving as a member and without the consent of the Commissioner any gratuity, present, subscription or testimonial (otherthan from customary collections for such purposes as presentations on the occasion of transfer, marriage or retirement),

(b) placing himself or herself as a member under a pecuniary obligation to any person in a manner that might affect the member's ability to discharge his or her duties as a member,

(c) improperly using (or attempting to use) his or her position as a member for his or her private advantage,

(d) writing or giving, otherwise than in accordance with conditions specified from time to time by the Commissioner, any testimonial of character or other recommendation with the object of supporting an application for a licence or certificate relating to intoxicating liquor, betting or gaming,

(e) failing wilfully and without good and sufficient cause to pay any lawful debt in such circumstances as to be liable to affect his or her ability to discharge his or her duties as a member or as to be liable to compromise other members, or

(f) signing or circulating a petition or statement relating to matters affecting the Garda Síochána other than a petition or statementpresented or intended to be presented to his or her superiors either directly or through a representative association.

9. Abuse of authority, that is to say, oppressive conduct towards a member of the public, including -

(a) without good and sufficient cause, making an arrest, or

(b) using unnecessary violence towards any person with whom the member is brought into contact in the execution, or purported execution, of his or her duties.

10. Neglect of health by a member, that is to say -

(a) any culpable act or conduct which occurs while the member is absent from duty because of sickness and which is calculated to delay his or her return to duty,

(b) while so absent from duty, failing, refusing or neglecting to carry out any direction of the Commissioner based on information received by him or her from the Chief Medical Officer of the Garda Síochána, or

(c) dishonestly absenting himself or herself from duty on grounds of illness.

11. Untidiness on duty or in uniform, that is to say, without good and sufficient cause, being untidy in appearance while on duty or while not on duty but wearing uniform in a public place.

12. Misuse of money or other property belonging to a member of the public that is in the custody of the Garda Síochána, that is to say, misappropriating or wilfully or carelessly misusing, wasting, losing or damaging any such money or other property or failing, without good and sufficient cause, to report any such misuse, waste, loss or damage.

13. Intoxication, that is to say, owing to the effects of intoxicating liquor or other drugs or a combination thereof, being unfit for duty either while on duty or while not on duty but wearing a uniform in a public place.

14. Drinking on duty, that is to say, without good and sufficient cause, drinking intoxicating liquor while on duty.

15. Unauthorised entry to licensed premises, that is to say, without good and sufficient cause while on duty or while not on duty but wearing uniform, entering any premises in respect of which a licence or permit is in force, or which are registered, for a purpose relating to intoxicating liquor, betting or gaming.

16. Prohibited spare-time activity, that is to say -

(a) identifying himself or herself actively or publicly with a political party,

(b) behaving in relation to political matters in such a manner and in such circumstances as to give rise to reasonable apprehension among members of the public in relation to his or her impartiality in the discharge of his or her duties, or

(c) engaging (whether for reward or otherwise) in any activity which, though not mentioned in subparagraph (a) or (b), is prohibited by the Commissioner (by either general or special directive) as being -

(i) likely to interfere with the proper discharge of his or her duties, or

(ii) likely to give rise to reasonable apprehension among members of the public in relation to his or her impartiality in the discharge of those duties, or

(iii) for good and stated reasons, inappropriate for members to engage in.

17. Criminal conduct, that is to say, conduct constituting an offence in respect of which there has been a conviction by a court.

18. Failure to comply with a direction under section 39 by a member of higher rank to account for any act done while on duty where that member has informed the member concerned that such failure may lead to dismissal from the Garda Síochána.

19. Failure to comply with any specified provision of any code of ethics established under section 17 of the Act.

20. Failure to co-operate with an investigation under the law and procedure referred to in section 55(2)(a).

21. An act done by a member while on secondment to the Police Service of Northern Ireland which, if done by a member of that Service, could be the subject of disciplinary action by the authorities in Northern Ireland.

22. Failure, without reasonable excuse, to co-operate with an investigation conducted under the Act or these regulations or with a board of inquiry established under Regulation 25.

23. Failure to comply with paragraph (a) or (b) of Regulation 12.

24. Failure to co-operate with a search under section 99 of a Garda Síochána station.

25. Obstruction, that is to say, doing any act which obstructs the operation of these regulations or the operation or implementation of any official policy, directions or instructions.

26. Abuse of official communications, that is to say, using e-mail or other internet procedures contrary to official policy.

27. Accessory to a breach of discipline, that is to say, conniving at, or knowingly being an accessory to, a breach of discipline.

28. Failure to comply with a requirement under section 42(4).

29. Harassment or intimidation of a confidential reporter within the meaning of the Garda Síochána (Confidential Reporting of Corruption and Malpractice) Regulations 2007 (S.I. No. 168 of 2007).

30. Making a false allegation of corruption or malpractice within the Garda Síochána otherwise than in good faith, as provided for in Regulation 14(3) of the said Regulations of 2007.

The Government hereby approve of the making of the foregoing regulations.

GIVEN under the Official Seal of the Government,

this 2

nd

day of May 2007.

BERTIE AHERN

Taoiseach

GIVEN under my Official Seal,

this 2

nd

day of May 2007.

MICHAEL MCDOWELL

Minister for Justice,

Equality and Law Reform

31. (1) If the board has recommended that disciplinary action should be taken in respect of a breach of discipline, the Commissioner shall, within 14 days after receipt of thereport and subject to paragraph (2), decide on the appropriate disciplinary action (being a disciplinary action or actions mentioned in Regulation 14(3) or 22) to be so taken.

(2) If -

(a) the member concerned is of a rank above that of inspector, and

(b) the Commissioner considers that the appropriate disciplinary action should be dismissal, a requirement to retire or resign as an alternative to dismissal or a reduction in rank,

he or she shall send a recommendation to that effect to the Minister for consideration by the Government.

(3) Without prejudice to sections 11 to 13, the disciplinary action that may be taken by the Government under paragraph (2) may include a reduction in rank.

(4) The decision or recommendation shall be notified in writing to the member concerned within 7 days after the date on which the Commissioner decides on the disciplinary action to be taken or the recommendation to be made.

(5) This regulation is subject to Regulation 32.

Procedure where Commissioner proposes to impose or recommend a more severe disciplinary action than that recommended

32. (1) If the Commissioner proposes to impose or recommend a disciplinary action which is more severe than that recommended by the board of inquiry, he or she shall notify the member concerned of the proposal as soon as practicable and request the member to submit to the Commissioner any comments that he or she may wish to make in relation to the proposal within 10 days after the date of the notification.

(2) After the expiration of that period and consideration of any comments made by the member, the Commissioner shall decide on the disciplinary action to be imposed or recommended and then proceed in accordance with paragraphs (2) to (4) of Regulation 31.

Appeal by member concerned

33. (1) Not later than 7 days after receiving notification of the decision of the Commissioner on the disciplinary action to be taken or recommended, the member concerned may give notice of appeal to the Commissioner against -

(a) the determination of the board of inquiry under Regulation 30(2)(b), or

(b) the disciplinary action decided on or to be recommended by the Commissioner,

or against both the determination and the disciplinary action or recommendation.

(2) The notice of appeal sent to the Commissioner shall be in such form as he or she may from time to time approve.

(3) The appeal may be based on one or more than one of the following grounds

(a) specified provisions of these regulations were not complied with;

(b) the determination is not justified, having regard to the evidence heard by the board of inquiry;

(c) all the relevant facts -

(i) were not ascertained,

(ii) were not considered, or

(iii) were not considered in a reasonable manner;

(d) the member was not given a reasonable opportunity to be heard and to respond to matters raised;

(e) the disciplinary action which the Commissioner has decided to take or recommend is disproportionate in relation to the breach of discipline concerned.

(4) If the member does not give notice of appeal within the period mentioned in paragraph (1), the Commissioner shall proceed to implement or, as the case may be, recommend to the Minister the disciplinary sanction concerned.

Appeal Board

34. (1) The Commissioner shall, as soon as practicable after receiving notice of appeal from the member concerned, establish a board (in these regulations referred to as an “Appeal Board”) to hear and determine the appeal and shall transmit the notice of appeal to it.

(2) An Appeal Board consists of 3 persons.

(3) The chairperson of an Appeal Board shall be selected by the Commissioner from a panel nominated by the Minister.

(4) Each member of the panel shall be a judge of the District Court or a practising barrister, or practising solicitor, of not less than 10 years' standing.

(5) The other members of an Appeal Board shall be -

(a) either the Commissioner or a member selected by him or her from a panel consisting of the deputy commissioners and assistant commissioners, and

(b) either -

(i) a member selected by the representative association of which the member concerned is a member from a panel consisting of the members of the central executive committee of that association, or

(ii) where the member concerned is not a member of a representative association, a member selected by the Commissioner.

(6) A member referred to in paragraph (5) shall not be appointed as a member of an Appeal Board to consider a case referred to it if he or she has been involved in any capacity in relation to an earlier aspect of the case.

(7) Subject to these regulations, an Appeal Board shall determine its own procedure.

Procedure before hearing of appeal

35. (1) On receipt of a notice of appeal, an Appeal Board shall as soon as practicable -

(a) by notice in writing request the member to send to it -

(i) a written statement of the ground or grounds of the appeal, as specified in Regulation 33(3), and

(ii) any other submission that it may request,

in such form and within such period as it may specify, and

(b) inform the member at least 15 days beforehand of the time, date and place of the hearing of the appeal.

(2) An Appeal Board may refuse to consider an appeal where -

(a) the notice of appeal was not given within the period specified in Regulation 33(1), or

(b) having considered the member's statement of the ground or grounds of appeal, it is of opinion that the case made by the member is frivolous, vexatious or without substance or foundation.

(3) The Appeal Board shall inform the Commissioner of any such refusal, and the Commissioner shall proceed as if the notice of appeal had not been given.

(4) The member concerned may withdraw the appeal at any time before it is heard by the Appeal Board by submitting to the Commissioner a notification in writing to that effect.

(5) On receiving such a notification the Commissioner shall -

(a) inform the Appeal Board accordingly, and

(b) proceed to implement or recommend the disciplinary action decided on.

Proceedings at Appeal Board

36. (1) Subject to paragraph (2), an Appeal Board may, at its discretion, invite any person to give evidence orally or in writing and may grant or refuse a request from any party to the proceedings so to give evidence to it.

(2) The member concerned -

(a) is entitled to be accompanied at the appeal and be represented by an official of his or her representative association, another member of his or her choice or a solicitor or barrister at the member's own expense, and

(b) may make oral submissions to the Appeal Board either in person or through such an official, member, barrister or solicitor.

(3) Where the Appeal Board is hearing oral submissions, the following persons may be present

(a) the member concerned;

(b) any person who is entitled to represent the member;

(c) any other person permitted by the Appeal Board to be present.

(4) The chairperson of an Appeal Board may administer an oath or take an affirmation.

Decision of Appeal Board

37. (1) Where an appeal is against a determination of a board of inquiry, an Appeal Board may -

(a) affirm the determination and either -

(i) affirm the decision of the Commissioner in relation to the disciplinary action to be taken or recommended, or

(ii) substitute another disciplinary action of a less serious nature,

(b) quash the determination and the Commissioner's decision,

(c) if -

(i) it decides that the member concerned has not committed the breach of discipline alleged but has committed another and less serious breach of discipline,

(ii) it is satisfied that such a decision would not be unfair to the member concerned having regard to the fact that the other breach is not the breach alleged,

quash the determination and decision and substitute another disciplinary action in respect of that other breach, or

(d) quash the determination and decision and decide that in the circumstances of the particular case another board of inquiry should be established by the Commissioner to determine whether the member committed a breach of discipline.

(2) Where an appeal is against a decision of the Commissioner in relation to disciplinary action, an Appeal Board may -

(a) affirm the decision, or

(b) substitute another specified disciplinary action of a less serious nature.

(3) An Appeal Board shall communicate its decision on the appeal and the reasons for it to the Commissioner and the member concerned within 7 days after the conclusion of the hearing.

(4) Where the decision of an Appeal Board is not unanimous, only the decision of the majority of its members shall be communicated under paragraph (3).

(5) The Commissioner shall implement the decision of the Appeal Board within 7 days after that decision is communicated to him or her.

(6) Where the decision of the Appeal Board is that a member above the rank of inspector should be dismissed, required to retire or resign as an alternative to dismissal, or reduced in rank, the Commissioner shall communicate the decision to the Minister for consideration by the Government.

(7) In this regulation, “less serious breach of discipline” means a breach of discipline which in the opinion of the Appeal Board is one which in the circumstances of the particular case merits disciplinary action of a less serious nature than that warranted by the breach alleged.

Absence of member concerned

38. Where -

(a) the member concerned, without reasonable excuse, does not attend a hearing of a board of inquiry or an Appeal Board, and

(b) compliance by the board or Appeal Board with any provision of these regulations is therefore not possible,

the board of inquiry or Appeal Board may, notwithstanding such non-compliance, proceed in all respects in the member's absence if satisfied that to do so is reasonable in the circumstances.

PART 4

Summary dismissal

Summary dismissal of member

39. (1) Notwithstanding anything in these regulations and without prejudice to section 14(2), the Commissioner may, subject to this regulation, dismiss from the Garda Síochána any member (not being above the rank of inspector) whom he or she considers unfit for retention in the Garda Síochána.

(2) The power of dismissal conferred by this regulation shall not be exercised except where -

(a) the Commissioner is not in any doubt as to the material facts and the relevant breach of discipline is of such gravity that the Commissioner has decided that the facts and the breach merit dismissal and that the holding of an inquiry under these regulations could not affect his or her decision in the matter,

(b) subject to paragraph (3), disclosure of the facts relating to the breach would, in the opinion of the Commissioner, be liable to affect the security of the State or to constitute a serious and unjustifiable infringement of the rights of another person, or

(c) the member concerned has failed to attend for duty over such a period and in such circumstances that it can be presumed that his or her intention has been to abandon his or her membership of the Garda Síochána.

(3) In a case referred to in paragraph (2)(b), the Commissioner shall consider whether, in the interests of the member concerned, some special inquiry can be held into the relevant breach of discipline which would not affect the security of the State or constitute a serious and unjustifiable infringement of the rights of another person.

(4) The power of dismissal conferred by this regulation shall not be exercised -

(a) where the member concerned has completed his or her period of probation, without the consent of the Minister,

(b) where paragraph 2(a) applies, without the member concerned being informed of the material facts and the relevant breach of discipline, and

(c) except where paragraph 2(c) applies or where, despite reasonable efforts to do so, the whereabouts of the member concerned have not been established, without the member being given an opportunity of submitting to the Commissioner reasons against the proposed dismissal.

PART 5

Complaints referred to Commissioner by Garda Síochána Ombudsman Commission

Definitions (Part 5)

40. In this Part -

“Commission” means the Garda Síochána Ombudsman Commission;

“complaint” means a complaint determined by the Commission under section 87 to be admissible;

Complaint referred by Commission for unsupervised investigation

41. (1) This regulation applies where -

(a) a complaint is referred by the Commission under section 92(a) to the Commissioner, and

(b) the Commission does not supervise the investigation.

(2) Where this regulation applies, the Commissioner shall appoint a member under Regulation 14 or, as appropriate, Regulation 23 to investigate the complaint, and Part 2 or, as the case may be, Part 3 shall apply in relation to the investigation and any furtherproceedings under the Part concerned, with the modification that a member so appointed is deemed to be a deciding officer or, as the case may be, an investigating officer and with any other necessary modifications.

(3) An appointment under paragraph (2) is subject to the prior approval of the Commission, if so required by it.

(4) The Commissioner shall inform the Commission, the complainant and the member concerned of -

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

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

Complaint referred by Commission for supervised investigation

42. (1) This regulation applies where -

(a) a complaint is referred by the Commission for investigation under section 92(a) to the Commissioner, and

(b) the Commission has decided to supervise the investigation.

(2) Where this regulation applies, the Commissioner shall appoint a member under Regulation 14 or, as appropriate, Regulation 23 to investigate the complaint, and for this purpose Regulations 14 to 18 or 23 and 24 apply accordingly, with the modification that a member so appointed is deemed to be a deciding officer or investigating officer, as the case may be, and with any other necessary modifications.

(3) An appointment under paragraph (2) is subject to the prior approval of the Commission, if so required by it.

(4) The appointed member shall -

(a) comply with any requirement or direction of, or arrangement by, the Commission under section 94(5),

(b) submit to the Commission the report prepared by him or her under Regulation 18 or 24, together with copies of any written statements made during the investigation, and

(c) submit a copy of the report and of any accompanying documents to the Commissioner.

(5) The report shall, in particular, include a statement of the facts established by the investigation.

Review by Commissioner of unsupervised investigation

43. At the request of the Commission under section 94(11)(a) to review an unsupervised investigation, the Commissioner -

(a) shall cause the review to be undertaken, and

(b) on the conclusion of the review, shall report to the Commission concerning any further action that he or she proposes to take in the matter.

Taking over of investigation by Ombudsman Commission

44. Nothing in these regulations prevents the Commission from deciding at any time to take over the investigation of a complaint referred by it to the Commissioner.

Recommendation by Commission under section 97 (less serious breach of discipline)

45. (1) This regulation applies where -

(a) the Commission, on the conclusion of a supervised investigation under Regulations 14 to 18 or of its own investigation under section 95, makes a report to the Commissioner under section 97 which includes a recommendation relating to disciplinary action to be taken against a member under these regulations, and

(b) a member designated by the Commissioner decides, on the basis of the statement of the facts established by the investigation and included in the report -

(i) that the member is in breach of discipline and may be subject to one of the disciplinary sanctions mentioned in Regulation 14(3), and

(ii) that a specified one of those disciplinary sanctions should be imposed.

(2) Where this regulation applies, the member so designated shall send a notice to the member concerned -

(a) conveying his or her decision,

(b) enclosing a copy of the report, and

(c) informing the member that he or she may apply to the Commissioner in writing to review the decision within 7 days after receiving the notice.

(3) The Commissioner may extend the period specified in paragraph (2)(c) if satisfied that it is appropriate to do so.

(4) The review shall be conducted by the Commissioner as if it had been applied for by the member concerned after receiving a deciding officer's report under Regulation 19(1), and for that purpose paragraphs (2), (3) and (5) of Regulation 19 and Regulation 20 shall apply in relation to the review, with the necessary modifications.

Recommendation by Commission under section 97 (serious breach of discipline)

46. (1) This regulation applies where -

(a) the Commission, on the conclusion of a supervised investigation under Regulations 23 and 24 or of its own investigation under section 95, makes a report to the Commissioner under section 97 which includes arecommendation that disciplinary proceedings should be instituted against the member concerned under these regulations, and

(b) it appears to the Commissioner, having regard to the statement of the facts established by the investigation and included in the report, that the member may have been in breach of discipline and may be subject to one of the disciplinary sanctions mentioned in Regulation 22.

(2) Where this regulation applies, the Commissioner shall -

(a) establish a board of inquiry to determine whether a breach of discipline has been committed by the member concerned, and

(b) if so, to recommend to the Commissioner the disciplinary action to be taken in relation to the member,

and for this purpose Regulations 25 to 38 apply in relation to the disciplinary proceedings against the member, with the modification that a copy of the report of the Commission shall accompany the notification to the member concerned under Regulation 27(2) and with any other necessary modifications.

Commission to be informed of outcome of disciplinary proceedings

47. The Commissioner shall notify the Commission of the outcome of any disciplinary proceedings taken after receiving a report from the Commission under section 97 and of any disciplinary sanction imposed on the member concerned.

PART 6

Miscellaneous

Breach of discipline at Garda Training College by member on probation

.

48. (1) Notwithstanding anything in these regulations, the Chief Superintendent in Charge at the Garda Training College (or, if he or she is absent, the member acting on his or her behalf) may deal with a breach of discipline by a member attending the College who has not completed the period of probation.

(2) The Chief Superintendent (or other member so acting on his or her behalf) shall ensure that when dealing with a breach of discipline under this regulation the member concerned is informed in sufficient detail of the nature of the breach to enable him or her to understand fully what is alleged and to give any explanation or make any statement in relation to the matter.

(3) Disciplinary action taken under this regulation against a member found to be in breach of discipline shall consist of a reduction in pay not exceeding one week's pay or a reprimand, warning, caution or advice and shall be notified to the Commissioner without delay.

(4) The member concerned may apply to the Commissioner to review the disciplinary action.

(5) On the review the Commissioner shall affirm or set aside the disciplinary action or set it aside and substitute any other disciplinary action specified in paragraph (3).

Material to be transmitted to Chief Constable of PSNI under section 56(3)

49. (1) This regulation applies where a member of the Police Service of Northern Ireland who has been appointed to a rank in the Garda Síochána under section 53(1) has been the subject of disciplinary proceedings.

(2) Where this regulation applies, the material to be transmitted by the Commissioner under section 56(3) to the Chief Constable of the Police Service of Northern Ireland shall consist of the documentation in the Commissioner's possession relating to the member and arising out of the investigation and any subsequent proceedings, including any proceedings before a board of inquiry or an Appeal Board.

Extension of time

50. Any time limit provided for by these regulations for the doing of anything by the member concerned may be extended by the Commissioner or, where appropriate, by the Appeal Board if the Commissioner or Appeal Board is satisfied that an extension is justified.

Revocation

51. The Garda Síochána (Discipline) Regulations 1989 are hereby revoked.

SCHEDULE

Regulation 5

Acts or Conduct constituting Breaches of Discipline

STATUTORY INSTRUMENTS

S.I. No. 214 of 2007

Garda Síochána (Discipline) Regulations 2007

I, Michael McDowell, Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by section 123 of the Garda Síochána Act 2005 (No. 20 of 2005), after consulting with the Commissioner of the Garda Síochána and with the approval of the Government, hereby make the following regulations

PART 1

Preliminary

Short title