+353 (0)1 5175900 +353 (0) 404 20688 |wendy@wdsolicitors.ie

In the case of Canavan v The Commissioner of An Garda Siochana [2016 IEHC 225] the applicant sought by way of judicial review an order of prohibition preventing the respondent from continuing a process of internal disciplinary against him including various declaratory orders which he contended related to the inordinate and inexcusable delay in the investigation. The applicant also sought orders prohibiting the respondent fro further suspending him from duty on foot of alleged breaches of discipline.

Background

On 9th May, 2014, the applicant returned to work following an extended period of sick leave. Subsequently on 21st May, 2014 the applicant informed an Inspector at Pearse Street Garda Station that he wished to initiate a grievance procedure against two of his superior officers. The applicant wished to raise the complaint verbally initially. On 23rd May the applicant was contacted by a different Inspector and informed that he had been suspended from duty. The applicant later received the formal notice of suspension under Regulation 7 of the Garda Siochana (Discipline) Regulations 2007 and the reasons given were that the applicant failed to prosecute certain cases in 2012 and 2013.

The applicants initially periods of suspension and further notices of suspension ran from 23rd May to date.

On 29th May, 2014 the applicant was served with a notice of investigation pursuant to Regulation 24 of the Regulations of 2007 which again referred to the failure “to prosecute various cases before the Courts on various dates in 2012 and 2013”. On 31st March, 2015 the applicant was served with a further notice of investigation in respect of three other alleged breaches of discipline. 

On the 25th August, 2014 the solicitors for the applicant wrote to the respondent complaining about the failure to give reasons for the suspension, and the delay in dealing with the disciplinary investigation. By letter dated 8th October, 2014 the respondents identified the alleged failure of duty but offered no reason as to why a suspension of the applicant was appropriate in the circumstances. A further letter dated 29th October 2015 provided further clarity in relation to the suspension namely a failure “ to prosecute various cases before the Courts on various dates in 2012 and 2013” and the failure “to progress a number of criminal investigations during 2012 and 2013, including that he failed to lodge with the courts charge sheets and bail bonds and also failed to transmit tracking forms and Court Schedules to the Court Presenters Office”. On the 31st March, 2015 he was informed of further reasons, that he failed to “properly record items of public property, in line with the requirements of the Garda Code, that he failed to record substances believed to be illegal drugs and failed to properly investigate an incident contrary to s.49 of the Road Traffic Acts 1961 – 2006”.

Certain alleged breaches of criminal law were also being investigated but the DPP issued directions on 7th January 2016 that prosecution of the applicant was not warranted. 

In relation to the issue of delay, the respondent justified the delay in part by explaining that the disciplinary inquiry was stayed pending the conclusion of the criminal investigation. The applicant noted however that prior to the 29th May, 2015 he was not aware that any criminal investigation was under way, and that the period of 12 months between his initial suspension and the notification of such an investigation would suggest that it could not have been a justifying reason for the suspension.

A power to suspend

Regulation 7 of the Regulations of 2007 confers on the Commissioner the power to suspend a member from active duty. Such power arises in the context identified by the Regulations as follows:

In the present case the applicant had been paid what is termed a “suspension allowance”, lower that his ordinary remuneration and asserted that suspension was to be characterised as a penalty in respect of which a particular degree of scrutiny must be exercised by the court, and which cannot be imposed arbitrarily.

In Flynn v. An Post [1987] I.R. 68 the Supreme Court held that a suspension of an employee for a three year period ceased to be valid after a point when the disciplinary investigation ought to have been ready to proceed, Henchy J. noted:

“In a bilateral situation, such as existed here between an employer and employee in regard to the right to suspend and dismiss for disciplinary reasons, justice cannot be treated as a one-way street. The rights of both parties must be taken into account for the purpose of determining which of the claimed rights should prevail so as to achieve a compliance with the fundamental requirements of justice. Where (as happened here) the employee has been suspended without pay, that suspension should in all fairness be disposed of, either by raising the suspension or by dismissing the employee, as soon as is reasonably practicable. But when it is reasonably practicable to do so is something that a court cannot decide without also taken into account the considerations put forward by the employer as being basic to his needs. It is only when the claims of both parties have been set against one another and duly balanced that a court can decide what is needed to satisfy the fundamental requirements of justice”

The court in Allmann v. Minister for Justice Equality and Law Reform & Ors.[2003] 14 E.L.R. 7 accepted the above principles and noted they could apply even when a person was suspended on reduced pay.

In McMahon v. Irish Aviation Authority & Anor. [2014] IEHC 431, Hogan J.considered that the obvious importance of aviation safety could justify a holding or summary suspension. He noted:

“The law affords considerable latitude to a regulatory body such as the Authority to act speedily and decisively in the interests of public safety. It is nevertheless to be expected that the Authority will thereafter act with all due speed to ensure that the complaints against named individuals are investigated fully, fairly and promptly”. para 6818.

In Gavin v. Minister for Finance [2000] IESC 8, Keane C.J., delivering the judgment of the Court made it clear that the principles of natural or constitutional justice or fair procedure cannot be imposed on a decision to invoke a holding suspension. With regard to whether such procedure do apply, he said as follows:-“But they do not apply to suspensions which are made, as a holding operation, pending enquiries. Very often irregularities are disclosed in a Government department or in a business house; and a man may be suspended on full pay pending enquiries. Suspicion may rest on him; and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something must be done at once.”

What is a holding suspension?

The court then considered whether the suspension of the applicant could be said to be a holding one in the circumstances of the present case.

The case of Quirke v. Bord Luthchleas na hÉireann [1988] 1 I.R. 83 looked at the distinction between a holding suspension and a lengthy suspension on the other hand. Barr J noted:

“On the other hand, a suspension may be imposed not as a holding operation pending the outcome of an inquiry, but as a penalty by way of punishment of a member who has been found guilty of misconduct or breach of rules. The importance of the distinction is that where a suspension is imposed by way of punishment, it follows that the body in question has found its member guilty of significant misconduct or breach of rules.”22.

Kearns J. in Morgan v. Trinity College Dublin & Ors. [2003] IEHC 167; [2003] 3 I.R. 157 held that the open-ended suspension here had to be seen as a form of punishment “and a severe one at that”. He further stated that “An open-ended suspension, particularly one without pay, can only be seen as a form of punishment, and a severe one at that. In contrast, a short period of suspension with pay against a clearly defined backdrop of consecutive steps to resolve the disciplinary issue is less likely to warrant the court’s intervention on the basis that the procedures, or their application, is unfair to the person concerned.

Henchy J. in Flynn v. An Post suggested that the right to suspend cannot be treated as a “one way street” and went on to say as follows:-“Where (as happened here) the employee has been suspended without pay, that suspension should in all fairness be disposed of, either by raising the suspension or by dismissing the employee, as soon as is possible”

The court considered that that while a holding suspension may be justified without giving the member the benefit of procedural fairness, the balance is tipped towards a requirement of such fairness when the suspension has been a lengthy one, and when no substantive progress has been made in the investigation. He noted the delay in the present case was almost two years and some of this was attributed to the fact that a criminal investigation was ongoing. This however accounts for at best three months and that the suspension had ceased to be a holding suspension before this and that the delay was unwarranted. 

The court considered that the applicant had suffered prejudice and that the balance tilted, such that the requirements of justice require expedition in the conduct of the inquiry.

The court further noted that the length of time that it took to interview the applicant between the 23rd May, 2014 and the only interview which was conducted a year later on 29th May, 2015, showed a lack of urgency.  

Justice Baker commented:

I consider then that the suspension of the applicant from duty has ceased to be a holding suspension and that principles of fairness and due process come to be engaged

The decision to suspend the applicant
The first ground on which the applicant sought judicial review was that his continued suspension from active duty was unwarranted and/or made without due process. Justice Baker referred to the circular dealing with suspension and noted “……the three month framework is intended to impose a form of time limit within which it is expected that there would be some engagement with the facts, to ascertain whether they justify the continued suspension

The court noted that there was no record of any meeting, or other note concerning the decision to suspend is exhibited. The applicant referred to the case of P.D.P. v. Board Of Management of The Patrician School & HSE[2012] IEHC 591, a judicial review in which O’Neill J. noted the absence of any evidence to dispute or challenge the evidence of the applicant, or which offered an adequate explanation for the cessation of the investigation, the subject matter of the judicial review.

The court noted however that there was no obligation imposed by the Regulations that the Commissioner was obliged to give reasons to a member of the Force before effecting a suspension (McHugh v. Commissioner of An Garda Síochána [1987] I.L.R.M. 181).The court observed that not one of the notices of suspension prior to 30th October, 2015 contained a reason for which the applicant was suspended, nor why continued suspension was considered necessary. 

Justice Baker considered that the continued suspension of the applicant has not been shown to be justified and that the appropriate order was a declaration that the continued suspension of the applicant was not valid and that he should be reinstated to his employment on full pay and allowances. 

The application to prevent the inquiry

The court then considered whether the investigation was conducted with due expedition having regard to the rights of fair procedure and noted that the courts have shown a reluctance to interfere with the course of a disciplinary inquiry under the Garda Regulations (Gillen v. Commissioner of An Garda Síochána [2012] 1 I.R. 574).

Justice Baker considered that a short window in the present case between October, 2015 and January, 2016 could be justified, having regard to the fact that the decision of the DPP was awaited on a possible prosecution. Ultimately the court considered that the overall delay was not sufficiently egregious to warrant an order that the inquiry be annulled.For the applicant to succeed in an application that the inquiry be annulled merely on account of delay, he would require to show individual prejudice in the conduct of his defence of the disciplinary charges.Justice Baker noted that “….the kind of individual prejudice which, in my view, is necessary to warrant the court’s interference with the disciplinary process at this stage is not present and a more general prejudice in the form of upset or stress is no more than one would expect and is not, of itself sufficient to warrant the court’s interference“. The judge adopted the the dicta of Finnegan J. in Gillen v. Commissioner of An Garda Síochána where it was provided that:-

“…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.”

Conclusion

The court refused the relief sought that the inquiry be prohibited