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The recent case of John Wilson v Superintenddent Sean Farrell, Chief Superintendent Patrick McGee, the Commissioner of an Garda Siochana Ireland has attracted a lot of media attention since the whistleblowing controversy hit the media.

The judgement of Justice O’Malley was delivered by the High Court on 11th April, 2014 and a full copy of the decision is available here. For the purposes of this blog post we have referred extensively to extracts from the judgement as reported on www.courts.ie

Background

This case centered on whether or not a failure by the applicant, a now retired Garda, to comply with an order to give an account of an activity engaged in by him while off duty was susceptible to disciplinary proceedings.

The background to activity at issue arose as a result of a long-running dispute between neighbours in an estate in Virginia, County Cavan. It was reported that on 11th January, 2012 four individuals, from both sides of the dispute, were prosecuted at a sitting of Virginia District Court in Cavan Courthouse on charges of harassment.After hearing one witness, the District Judge dismissed all charges, with voluntary sworn undertakings being given by all parties. On the 19th January, 2012, the prosecuting officer sent a report on the court proceedings to the Superintendent in Bailieboro. The report detailed the history of the dispute and concluded

During the hearing of this case at Cavan Courthouse it was noted that Garda John Wilson attached to Clones Garda Station sat next to Walter and Genevieve Smith defendants in the case. Garda Wilson was not in uniform and was not a witness for prosecution in case. There were no other cases listed in this special sitting. ”

Inquiry

On the 31st January, 2012 the Chief Superintendent of the Division sent a note to the Superintendent in Monaghan stating that an explanation was required in respect of the applicant’s attendance at the case. The note and the attached report were forwarded to the applicant through his sergeant, with the instruction that he was to report to the Superintendent by the 9th February. The applicant replied on 6th February, 2012 stating inter alia

“….what is Inspector Aiden Farrelly insinuating about me in his correspondence to the Divisional Officer Cavan Monaghan Garda Division dated 19th January, 2012?”

The superintendent replied on 9th February, that “Garda Wilson is directed to report in respect of the issue as set out in the Divisional Officer’s minute…..”

The applicant further replied on the 12th February noting……”I will report when I establish what Inspector Aiden Farrelly is insinuating about me in his correspondence to the Divisional Officer Cavan Monaghan Garda Division dated 19th of January 2012….” to which the Superintendent replied on 15th February that “Garda Wilson should comply with directions issued in minute dated 9th February 2012. It should be noted that the member is duty bound to account for his presence on the occasion. ”

The applicant did not accept this and requested that he be furnished “as a matter of urgency” with the Garda regulations governing this statement. A reminder communication was sent to the plaintiff on 22nd February. The Court noted that there appeared to have been a report from the Superintendent to the chief Superintendent which was omitted from the exhibits. The applicant was again requested in writing to account for his presence to which he replied on 20th March 2014 seeking clarification on how the correspondence related to him.

On the 26th March, 2012 the Chief Superintendent initiated disciplinary procedures by appointing the first named respondent as Deciding Officer to investigate the matter pursuant to the relevant regulations. The applicant contended that he was on a day off and he considered that he was entitled to privacy when off duty. The Chief Superintendent deposed to the fact the dispute giving rise to the District Court proceedings had given rise to over 90 complaints to the Gardaí and had also resulted in complaints of bias against members of An Garda Síochána (not including the applicant). He expressed concern that the applicant’s presence in the courthouse “… could give rise to an apprehension of lack of impartiality on the part of An Garda Síochána with regard to the aforesaid criminal case, and might have amounted to a breach of discipline.

The disciplinary inquiry

The first named respondent was appointed on the 26th March, 2012 to enquire as to whether or not the applicant had been in breach of discipline in not furnishing the report pursuant to the Garda Síochána (Discipline) Regulations 2007. The applicant was informed he would be interviewed in relation a number of alleged breaches of discipline including neglect of duty. The applicant was informed that “neglect of duty”‘ was a breach of discipline within the meaning of Regulation 5 of the Garda Síochána (Discipline) Regulations 2007 and was described at Reference No. 4 of the said Regulations.

The interview with the applicant was held on the 17th May, 2012 whereby he made a number of representations including an unlawful intrusion into his private life. The alleged breaches of discipline were put to the applicant and he subsequently made a statement including the statement that he believed the order by the Chief Superintendent to investigate the discipline investigation was an unlawful order. The respondent contended that although the applicant had been off duty he was still a serving member of An Garda Síochána when he attended Cavan courthouse and they were entitled to carry out the investigation.

The first named respondent concluded that the applicant was in breach of discipline in failing to respond to the order given on the 31st January, 2012 and the disciplinary sanction of “advice” was imposed which was the lowest level of sanction available in Garda disciplinary proceedings.The first named respondent also concluded that the applicant was in breach of discipline in failing to respond to the order given on the 6th March, 2012 and the sanction of “warning” was imposed which was the third lowest sanction available.

On the 6th June, 2012 the applicant sought a review of the decision of the first named respondent. The review was carried out by the second named respondent, who informed the applicant by letter dated the 22nd June, 2012 that he had decided to affirm the decision of the Deciding Officer.

Judicial review proceedings

Leave to apply for judicial review was granted by the High Court (McGovern J.) on the 30th July, 2012. The applicant sought orders of certiorari in relation to the decisions of the first and second named respondents and a declaration that those decisions were ultra vires the Garda Síochána (Discipline) Regulations, 2007. Leave was also granted to argue the validity of the regulations themselves, the constitutionality of the Garda Síochána Act, 2005 and the compatibility of that Act with the European Convention on Human Rights but those issues were not pursued at the hearing. The court considered the proper interpretation of the Act and Regulations only.

The Garda Síochána Act, 2005

The Court looked at Section 39 of the Act and Section 123 which deals with the power of the Minister for Justice, Equality and Law Reform to make regulations concerning disciplinary matters. Schedule 5 of the Act listed a number of matters under the heading “Breach of Discipline” including neglect of duty. The Schedule listed certain types of behaviour which could constitute a breach of discipline even if the member concerned was not on duty including “…..conducting himself or herself in a manner that the member knows, or ought to know, would be reasonably likely to bring discredit on the Garda Síochána“.

The Garda Síochána (Discipline) Regulations, 2007

The Court also considered Regulation 5 which provides that any act or conduct by a member which is mentioned in the Schedule to the regulations constituted a breach of discipline including “neglect of duty”. The Court also observed that where disciplinary procedures were invoked in respect of a suspected breach of discipline, the member concerned was obliged by regulation 12 to answer fully and truthfully any question put during the proceedings.

The applicant’s counsel contended that it was not disputed that a member may commit and may be disciplined for, various breaches of discipline while off duty and that in principle a garda does not have a right to privacy in respect of such conduct. It was contended however that the Act did not envisage having to account for off-duty activity because to do so would be an invasion of privacy. It was also contended that the request for an explanation of the applicant’s actions was not in itself an unlawful request, but it could not be construed as a “lawful order” in that there was no lawful power.

The respondent’s counsel contended that if it was accepted that a member could be disciplined for conduct engaged in while off duty, it followed that there can be no objection to asking for an account of off-duty activity. In general terms, it was submitted that a member was obliged to do anything that is his or her duty to do and the carrying out of a lawful order is certainly part of that duty.

Caselaw

In the case of Straker v Doherty [1991] 1 I.R. 23, in holding that the decision of the appeal board, upholding both the convictions and the recommendation that the applicant be dismissed, was not as a matter of law unreasonable, McCarthy J. considered that the test was that laid down in Keegan v Stardust Victims’ Compensation Tribunal [1986] I.R. 642.

“Applying that test to the circumstances of this case, I am not prepared to hold that the conclusion of the appeal board involved a rejection of or disregard for, fundamental reason or common sense. There are, no doubt, many who would consider the incident in question as tasteless and offensive but irrelevant to An Garda Síochána as such, whatever about its relevance to the individual garda; there are some who would consider that what a garda says off duty and in plain clothes is strictly his own business; there are others who would consider that, in a small country community, Gardaí should be setting an example of decent conduct. Quat homines tot sententiae. “

Conclusions

Justice O’Malley concluded that she did not consider “…there is any material difference between the meaning of the phrasing in the Act- “to do anything that it is his or her duty to do” and that of the regulations “to carry out any lawful order or to do any other thing that it is his or her duty to do”. It was observed that the issue was whether the direction given by the Chief Superintendent was lawful.

In respect of the right to private life, she considered that whilst a member of the Garda Síochána has a right to privacy and to a private life, because of the position in the public life of the community held by members of the force, that right must be considered to be somewhat more restricted than it is for people in many other occupations. Justice O’Malley observed that “….in general, attendance by a serving garda, even if off duty, in a public court at the hearing of a criminal prosecution is not something that is, on the face of it, private. The administration of justice in criminal cases is, for the most part, a public matter“.

Justice O’Malley considered that it was not unlawful to ask the question “What were you doing there?”. She noted…”It follows, in my view, that the Garda authorities have a right to an answer…… this does not depend on there being a specific provision in the Act or regulations- no statutory scheme (and indeed no employment contract) covers every incident of the employment relationship….I do not consider that the statutory provision relating to the obligation to account for acts done or omissions made while on duty excludes the existence of a duty to respond appropriately to inquiries as to off-duty conduct“. Justice O’Malley concluded that a lawful demand that a member account for himself has to be addressed.

The High Court noted that the applicant never actually stated, until the hearing before the deciding officer, that he considered his activities on the day to be private and give that “….the case was being heard in the garda divisional area in which he worked, and was being heard by a judge before whom he would probably have had occasion to give evidence, that would be a matter capable of impinging upon his role as a garda and upon the public perception of the force as a whole“.

Justice O’Malley concluded that consider the Chief Superintendent was entitled to ask for an explanation as to the presence of the applicant at the trial, and having directed that he give an explanation, was entitled to an adequate response. “In my view, the respondents were entitled to consider that his failure to deal with the matter more promptly and appropriately amounted to neglect of duty” and the claimant’s request for relief was refused.