No. 174/2007

IpsofactoJ.com: International Cases [2012] Part 1 Case 13 [SCIre]


THE SUPREME COURT OF IRELAND

Coram

Ian Gillen

- vs -

The Commissioner of

an Garda Siochana

FINNEGAN J

McKECHNIE J

O'DONNELL J

26 JANUARY 2012


Judgment

Justice Finnegan

  1. The appellant is a member of An Garda Siochána and at all relevant times was stationed at Kill O Grange, Co. Dublin. By order of the High Court (Macken J.) dated 21st February 2005 the appellant was granted leave to apply by way of judicial review for the following reliefs:-

  2. 1.

    An Order by way of injunction restraining the respondents from holding an inquiry or further processing the disciplinary proceedings against the applicant herein in respect of three alleged breaches of discipline on the 15th day of October 1999.

    2.

    A declaration that the failure by the respondents to process or progress the disciplinary proceedings against the applicant in respect of alleged breaches of discipline on the 15th day of October 1999 expeditiously breached basic fairness of procedures to which the applicant was entitled and/or constituted a breach of statutory duty and/or breached the applicant’s legitimate expectation that serious allegations of misconduct alleged against him pursuant to the Garda Siochána (Discipline) Regulations 1989 would be dealt with expeditiously.

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

  4. 1.

    The delay by the respondents in processing the alleged breaches of discipline on the part of the applicant on the 15th October 1999 was inordinate and inexcusable and breached the applicant’s right to natural and constitutional justice and fair procedures, was ultra vires and in breach of statutory duty and breaches his legitimate expectation that serious allegations of misconduct alleged against him pursuant to the Garda Siochána (Discipline) Regulations 1989 would be dealt with expeditiously.

    2.

    The respondents acted ultra vires and in breach of statutory duty in purporting to initiate an investigation pursuant to Article 8 of the Garda Siochána (Discipline) Regulations 1989 on the 4th May 2004.

  5. In the statement of opposition the respondents raised as a preliminary objection that the application is out of time in that it was not moved promptly or in any event within three months from the date upon which the grounds for the application first arose. Without prejudice to that objection the respondents relied upon grounds of objection which may be summarised as follows:-

  6. 1.

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

    2.

    The family reserved their rights to make a complaint and did not make a written complaint. The Garda Siochána (Complaints) Act 1986 section 15(2) stipulates that the procedure under that Act takes precedence over proceedings pursuant to the Garda Siochána (Discipline) Regulations 1989. The decision from the Complaints Board was not received until the 25th March 2004 and there was no delay thereafter.

    3.

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

    4.

    The appellant’s complaint that he suffers disadvantage in that he is not being promoted as he would have been were it not for the allegations made against him is without substance, proof or reality and is in any event irrelevant to the proceedings. The appellant has not been prejudiced by the delay.

    5.

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

    6.

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

    7.

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

    The factual background

  7. On the 4th September 1999 the body of Raonaid Murray (“the deceased”) was found at Silchester Crescent, Glenageary. She had suffered stab wounds. A murder investigation commenced immediately. The appellant was appointed as Family Liaison Officer to the Murray family (“the family”) his function being to liaise between the investigation team and the family and to support and assist the family during the course of the investigation. He was not involved with the murder investigation as such.

  8. On the 15th October 1999 Chief Superintendent Martin Donnellan was one of the senior investigating officers investigating the murder. On the 15th or 16th October 1999 he was contacted by the parents of the deceased (“the parents”) and he called to their home on the morning of the 16th October 1999 when a complaint was made to him concerning the appellant’s conduct on the previous evening and in the early hours of that morning. Earlier that morning the parents had confronted the appellant and informed him that they did not want him to continue as Family Liaison Officer. In his affidavit sworn on the 8th June 2005 Superintendent Donnellan deals with the complaints made to him as follows:-

  9. I say that during the course of my meeting with the Murray family on the morning of the 16th October 1999, following the behaviour of Garda Gillen on the previous night, the complaints involved inter alia: the fact that Garda Gillen had not returned home with their daughter from a public house at an agreed time, had driven their daughter home in circumstances where he had taken alcohol and would have been over the legal limit. I further say that before Mr Jim Murray outlined his concerns to me he told me that he reserved his right to make a complaint about the matter in the future, that I acknowledged Mr Murray’s right in that regard. I say that Mr Jim Murray indicated that he wished to reserve the right to make a formal complaint at a future date.

  10. Later on the 16th October 1999 Chief Superintendent Donnellan spoke to the appellant about the complaint. The appellant was removed as Family Liaison Officer.

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

  12. At the time (of the complaint) we reserved the right to make a formal complaint to the authorities (hopefully after the case had been solved) about the behaviour of Garda Gillen. We informed Chief Superintendent Donnellan of our intentions and he acknowledged our right to do this. Now, we want to know whether any report was made about his behaviour to his superiors and if so whether any internal disciplinary action was taken at the time.

  13. Inspector Ward was then appointed to deal with the allegations against the appellant. On the 26th November 2002 the parents wrote a detailed letter of complaint to Inspector Ward, this being the first written complaint. Enclosed with the letter were detailed statements from Sarah Murray, Jane Bridgeman and Audrey Territt as to the events of the 15th/16th October 1999. The letter of 26th November 2002 ends as follows:-

  14. We are forwarding this report to you as we feel that there have been serious breaches of professional conduct. We trust that our complaint will be thoroughly investigated and expect to hear from you in due course.

  15. The letter and enclosures were forwarded by Inspector Ward to the Assistant Commissioner, Dublin Metropolitan Region, recommending that a Superintendent from Internal Affairs be appointed to investigate the allegations contained in the letter. Superintendent Kevin Donohue and Inspector Colm Featherstone were appointed to examine all issues raised by the family and on the 23rd January 2003 they met with the family in the course of which meeting the options available to the family were discussed. At the end of the meeting the parents requested time to discuss the options with their children. On the 23rd March 2003 at a meeting the parents confirmed that they wished to have their complaint against the appellant dealt with by way of An Garda Siochána Complaints Board. A complaint was made to An Garda Siochána Complaints Board on the 20th July 2003. On the 25th March 2004 the Complaints Board deemed the complaint inadmissible as having been made outside the time limit of six months of the date of the conduct prescribed by the Garda Siochána (Complaints) Act 1986 section 4. On the 4th May 2004 Chief Superintendent Rock was appointed pursuant to Regulation 8 of the Garda Siochána Discipline Regulations 1989 to investigate the alleged breaches of discipline by the appellant. On the 21st May 2004 notice of the appointment of Chief Superintendent Rock was served on the appellant pursuant to Regulation 9 of the said Regulations. Chief Superintendent Rock had received all statements deemed necessary, eleven in all, by November 2004. On the 3rd November 2004 Chief Superintendent Rock met with the appellant and his solicitor and the statements were read over to them. The appellant denied the allegations. On the 22nd November 2004 the completed investigation file was submitted. On the 4th January 2005 the appellant was served with forms B30 and B33(B) together with the documents required to be served under Regulation 11 of the Garda Siochána (Discipline) Regulations 1989. On the 21st day of February 2005 the appellant sought ex parte and obtained leave to bring the application for judicial review.

    Chronology

  16. The relevant dates accordingly are as follows:-

    • 4th September 1999 Murder.

    • 15/16th October 1999 The disciplinary offences.

    • 16th October 1999 Complaint by the family.

    • 28th April 2002 Inquiry by the family.

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

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

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

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

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

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

    • 4th May 2004 Chief Superintendent Rock appointed to investigate.

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

    • April 2004 to October 2004 Statements taken.

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

    • 22nd November 2004 The investigation file received.

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

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

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

    The Garda Siochána (Discipline) Regulations 1986

  17. Regulation 8 of the Regulations provides as follows:-

  18. 8.

    (1)

    Subject to Regulation 7, where it appears that there may have been a breach of discipline, the matters shall be investigated as soon as practicable by a member not below the rank of inspector (in these Regulations referred to as an investigating officer).

    (2)

    An investigating officer shall be appointed by a member (in these Regulations referred to as an appointing officer) who is not below the rank of chief superintendent or who is a superintendent assigned to discharge the duties of a chief superintendent.

    9.

    (1)

    As soon as practicable after his appointment, an investigating officer shall inform the member concerned in writing –

    (a)

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

    (b)

    that he is investigating the matter.

    (2)

    Where it appears to an investigating officer that an alleged breach of discipline may constitute an offence, the law and practice applicable to the investigation of offences shall apply in relation to the investigation.

    (3)

    The investigating officer shall carry out the investigation either, as he thinks fit, alone or with the assistance of such other members as he may determine.

    10.

    (1)

    Upon completion of an investigation under Regulation 8, the investigating officer shall as soon as may be submit to the appointing officer a written report of the investigation, together with copies of any statements made.

    (2)

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

    (a)

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

    (b)

    if he decides to continue the proceedings, cause to be entered on a form (in these Regulations referred to as a discipline form) such particulars of the breach of discipline alleged as will leave the member concerned in no doubt as to the precise nature of it.

    (c)

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

  19. It is to be noted that the Regulations by the use of the phrases “as soon as practicable” in Regulation 8 and Regulation 9, and the use in Regulation 10 of “as soon as may be” and “without avoidable delay” clearly indicate an intention that there should be no unnecessary delay in the disciplinary process.

  20. The decision of the High Court

  21. The learned trial judge held that the grounds for the application first arose on 21st January 2005 when the appellant was served with a book of statements and Form B30. It was then clear that a formal disciplinary inquiry would proceed. Accordingly the application was not brought promptly nor within the period of six months prescribed by the Rules of the Superior Courts Order 84 Rule 12. On this basis the learned trial judge refused the appellant the relief sought. Nonetheless the learned trial judge proceeded to consider the grounds of application relied upon by the appellant.

  22. The learned trial judge found that there had been delay by the respondents but, having regard to the explanations for the delay, the delay was not unreasonable or excessive. There was no evidence that a disciplinary hearing would as a result of the delay be unfair. There was no evidence that the appellant was prejudiced in terms of promotion. The learned trial judge adverted to the public interest in the disciplinary proceedings continuing in the following terms:

  23. The court must also have regard to the interests of the public as well as those of the complainant with regard to an application for prohibition of a hearing. Garda discipline is of critical importance. The public should not be denied the right of investigation and, where deemed necessary, to an inquiry in relation to serious disciplinary allegations against a member of the Garda Siochána. O’Flaherty J. in McNeill v The Commissioner of An Garda Siochána [1997] 1 I.R. 483 has referred to the privileges of members of the Garda Siochána and the concomitant obligation with regard to the discharge of their duties.

  24. The learned trial judge held that the effect of section 15(2) of the Garda Siochána (Complaints) Act 1986 is to suspend disciplinary proceedings until determination of the complaints procedure. The learned trial judge then dealt with the history of the disciplinary proceedings and each element of delay within the same. He concluded that the breach was serious. There was no element of surprise nor was there any particular suffering on the part of the appellant resulting from the delay other than the necessary concern regarding the outcome of the process. The delay had been explained by the respondents. Fair procedures had been applied by the respondents throughout. The delay was not such as to render the disciplinary proceedings unfair, unjust or unconstitutional. Thus even if incorrect in holding that the application was brought out of time he would refuse the appellant the relief sought.

  25. The Notice of Appeal

  26. The grounds of appeal may be summarised as follows:-

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

    2. The learned trial judge erred in law and in fact in finding that the effect of section 15(2) of the Garda Siochána (Complaints) Act 1986 was to suspend the disciplinary procedure.

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

    4. The learned trial judge erred in law and in fact in finding that the applicant had to prove not only delay but also that it was unreasonable so as to amount to an unfair procedure and be unjust and unconstitutional.

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

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

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

    8. The respondent did not apply fair procedures.

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

  27. Submissions of the Appellant

  28. Before the High Court there had been no submission by the respondents that the application for leave was out of time. The respondent accepted that this was so and in these circumstances the issue not having been raised before the High Court this court should not consider the same.

  29. The appellant relied upon the chronology and submitted that the same discloses inordinate and unreasonable delay. The respondent has not offered any reasonable explanation for the delay. While the family had verbally complained of the appellant’s conduct they had not made a written complaint and reserved their right to make a complaint at a later stage. However the Regulations of 1989 do not require a formal or written complaint. Regulation 8 provides that “where it appears that there may have been a breach of discipline, the matters shall be investigated as soon as practicable by a member not below the rank of Inspector.” As of the 16th October 1999 the appellant’s superiors were aware that there may have been a breach of discipline and that required investigation as soon as practicable.

  30. Section 15(2) of the Garda Siochána Complaints Act 1986 does not prevent disciplinary procedures from being pursued but merely addresses the issue of duplication of an investigation. In any event it must have been immediately apparent that the complaint pursuant to the Garda Siochána (Complaints) Act 1989 by reason of being out of time was inadmissible and the disciplinary proceedings ought not to have been delayed pending finalisation of the complaint procedures.

  31. While the respondent contends that disciplinary proceedings would have been inappropriate while the family reserved their position in relation to making a complaint this is not justification for failing to proceed with the expedition required by the Regulations. That expedition is required is made clear by the use within the Regulations of the phrases “as soon as practicable”, “as soon as may be” and “without avoidable delay”. The appellant refers to the decisions In Re Butler [1970] I.R. 45, Ruigrok v Commissioner of An Garda Siochána the High Court unreported Murphy J. 19th December 2005, McNeill v Garda Commissioner [1997] 1 I.R. 469 and McCarthy v Dennedy v Garda Siochána Complaints Tribunal [2002] 2 I.L.R.M. 371.

  32. Submissions of the Respondent

  33. The respondents also relied on Ruigrok v Commissioner of An Garda Siochána and McNeill v Garda Commissioner and in particular to the dissenting judgment of Denham J. in the latter. Delay in the context of the Regulations should be considered in the light of the jurisprudence in relation to delay in civil and criminal proceedings. Reliance is also placed on the decision in McCarthy v The Garda Siochána Complaints Tribunal [2002] 2 I.L.R.M. 341 and the consideration therein of the judgment in McNeill v Commissioner of An Garda Siochána. Particular reliance is placed on a passage from the judgment of Geoghegan J. at page 361:-

  34. On the facts of that particular case Hamilton C.J. came to the conclusion that the obligation based on the Garda authorities to investigate alleged breaches of discipline as soon as practicable was not complied with and that the obligation was ‘mandatory’. He then went on to express the view that because of the failure of the Garda authorities to discharge that obligation all steps taken since the presentation of the written report of the investigating officer were void and of no effect. This last observation was not essential to the decision made and the relief granted in the form of an injunction and it may well be that it should be regarded as obiter dicta. There is nothing in the report of the case to indicate that there had been any particular argument as to whether breach of an expedition obligation rendered subsequent steps voidable or automatically void. At any rate O’Flaherty J. who concurred with the Chief Justice in relation to the allowing of the appeal and the granting of the reliefs, expressed no view on this aspect of the matter. Until it arises in some other case therefore I would express doubt as to whether breach of an expedition obligation in relation to different steps in a procedure is necessarily tantamount to failure of a condition precedent to taking of the next step.

    But what is important about the McNeill case is that the Supreme Court held by a majority of two judges to one that on the facts of that particular case there was a breach of the statutory obligation of expedition and that was on the basis that the Oireachtas intended that members of the force subjected to disciplinary scrutiny were entitled to have their investigations heard and determined quickly.

    And at p.362:-

    I would observe in passing that when Hamilton C.J. used the word ‘mandatory’ in the McNeill case it cannot be regarded as certain that he was doing so in contra distinction to ‘directory’. I take the view that as soon as may be means as soon may be reasonably practicable in all the circumstances and if I am right about that then it may not make very much difference whether on a theoretical basis the words requiring expedition in the 1986 Act or indeed in the Garda Discipline Regulations are to be regarded as mandatory or directory nor indeed on the legal principles to be applied as there are not much difference between the views expressed by Denham J. in her minority judgment in McNeill from the views expressed by Hamilton C.J. and O’Flaherty C.J. The difference was in the application of the principles to the particular facts.

  35. Further reliance is placed on the decision of McMenamin J. in Kennedy v The Commissioner of An Garda Siochána, unreported, the High Court, McMenamin J. 14th March 2008. In the course of his judgment in that case McMenamin J. dealt with McNeill v Commissioner of An Garda Siochána as follows:-

  36. The decision in McNeill must be seen in the light of the subsequent authorative decision of the Supreme Court in McCarthy. For the reasons identified earlier, I do not consider that the judgments in McNeill when considered as a totality are authority for the proposition that ordinary delay jurisprudence should be precluded in a consideration of the Regulations.

  37. Finally reliance is placed on the decision in Ryan v Commissioner of An Garda Siochána, the High Court, unreported, O’Neill J. 6th October 2009. Having regard to the foregoing cases there was no inordinate or inexcusable delay on the part of the respondent.

  38. In the present case it was not practicable to proceed in the absence of the co-operation of the family and in particular the furnishing of written statements. There was no reality to an investigation or an inquiry without that co-operation.

  39. The period of delay incurred by reason of the complaint pursuant to the Garda Siochána (Complaints) Act 1986 should be excluded having regard to the provisions of section 15(2) of the 1986 Act.

  40. All relevant circumstances should be taken into account in considering any delay. Particularly relevant in this case is the attitude of the family. Further, prejudice to the Garda concerned should be taken into account but there was no evidence of prejudice in the present case. The principal task for a court is to balance the interest of the individual Garda with the interest of the public in having complaints investigated.

  41. Discussion

  42. The Garda Siochána (Discipline) Regulations 1986 in Regulation 8(1) provides that “matters shall be investigated as soon as practicable”. Regulation 9(1) provides that an investigating officer as soon as practicable after his appointment shall inform the member concerned of certain matters in writing. Regulation 10(1) provides that upon completion of an investigation under Regulation 8 the investigating officer shall as soon as may be submit a written report to the appointing officer. The Regulations accordingly envisage that there should be no unnecessary delay in the disciplinary process. In each case the Regulations employ the word “shall”. The first task for the court, accordingly, is to interpret these provisions of the Regulations. In Howard v Boddington [1877] 2 P.D. 203 Lord Penzance dealt with the distinction between imperative and mandatory provisions as follows:-

  43. The real question in all these cases is this: a thing has been ordered by the legislature to be done. What is the consequence if it is not done? There may be many provisions in Acts of Parliament which, although they are not strictly observed, yet do not appear to the court to be of that material importance to the subject matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure. On the other hand, there are some provisions in respect of which the court would take the opposite view I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.

  44. This was the approach followed by the Supreme Court in The State (Elm Developments Limited) v An Bord Pleanála [1981] I.L.R.M. 108 at p. 110:-

  45. Whether a provision in a statute or statutory instrument, which on the face of it is obligatory (for example, by the use of the word ‘shall), should be treated by the courts as truly mandatory or merely directory depends on the statutory scheme as a whole and the part played in that scheme by the provision in question. If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly mandatory, and will not excuse a departure from it. But if on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute non-compliance may be excused.

  46. Essentially in each case the function of the court will be to identify the statutory intention to be imputed to the Oireachtas. In Charles v Judicial and Legal Service Commission [2003] LRC 422 Tipping J. giving of the opinion of the Privy Council said:-

  47. At the outset their Lordships observe that it seems highly unlikely that the Commission could have intended that breaches of time limits at the investigation stage would inevitably prevent it from discharging its public function and duty of enquiring into and, if appropriate, prosecuting relevant indiscipline or misconduct.

  48. Tipping J. went on in that case to hold that while there were delays they were in good faith and were understandable, that the appellant suffered no material prejudice, that there were no fair trial considerations and no fundamental human rights in issue. In those circumstances failure to observe the time limits did not prevent continuance of disciplinary proceedings.

  49. In R. v Soneji [2006] 1 A.C. 340 the House of Lords was concerned with time limits in confiscation proceedings following conviction of a criminal offence. Lord Steyn approved of the analysis of the High Court of Australia in Project Blue Sky Inc. v Australian Broadcasting Authority [1998] 194 C.L.R. 355 which included the following passage:-

  50. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.

    Lord Steyn concluded as follows:-

    Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead as held in Attorney General’s Reference (No. 3 of 1999), the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction.

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

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

    2. If the answer to that question is yes no further question arises. If the answer is no then the court must consider whether there has been substantial compliance which would depend upon the facts of each individual case and will involve consideration of whether any prejudice has been caused or injustice done by regarding an act done out of time as valid.

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

  53. The disciplinary regulations require that the matter should proceed with a degree of expedition at every stage. And for good reason; members of the Garda Siochána have special privileges as well as special responsibilities not shared by ordinary citizens; therefore, if suspicion descends on a member of the Garda Siochána it is important from a public policy point of view that the matter should be investigated and dealt with quickly. The air should be cleared one way or the other. I am talking of matters of substance, needless to say, and not with every idle word that may be uttered in a locality from time to time. Similarly, from the perspective of members of the Garda Siochána; they are entitled to hold their heads up in the community in which they serve; they are entitled to expect that if a charge is contemplated that it should be brought forward with a degree of expedition and that they should be given a chance to meet it.

  54. In that passage the two interests involved in Garda disciplinary proceedings are identified – the interest of the individual Garda in having his name cleared and the public interest that allegations of breaches of discipline on misconduct should be investigated.

  55. In a dissenting judgment Denham J. outlines an approach to the consideration of delay in Garda disciplinary proceedings. The starting point was the constitutional tenet of reasonable expedition. Thereafter she looked at specific prejudice to the member. She then had regard to whether the delay was unreasonable delay in all the circumstances of the case. She suggested some factors which might result in unfairness to the member and in particular suspension without pay and the effect of pending or depending disciplinary proceedings in terms of worry and concern.

  56. I am satisfied that in having regard to the dual purpose of the statutory requirement for expedition in Garda disciplinary proceedings that in each case regard must be had not just to the interests of the individual Garda concerned, but also to the public interest in maintaining public confidence in the Garda Siochána. It was, of course, open to the legislature to provide a strict time limit for each stage of the disciplinary proceedings or an overall time limit but this was not done. I am satisfied that it was not the intention that a failure to proceed with expedition as required by the Regulations will necessarily result in disciplinary proceedings becoming void. Each case will turn on its own particular circumstances. The court will have regard to all the circumstance in determining whether or not the failure progress the disciplinary proceedings has been such that to allow them to continue would be to disregard the legislative intention.

  57. Of relevance to this particular case is the enactment of the Garda Siochána (Complaints) Act 1986 which provided for the establishment of the Garda Siochána Complaints Board and the Garda Siochána Complaints Appeal Tribunal to which a member of the public may complain about the conduct of any member of the Garda Siochána. The Act provides that the membership of the Board shall comprise at least three who are either a practising barrister or a practising solicitor of not less than ten years standing. The membership of the board may not include any person who is or has been a member of the Garda Siochána, save one. Each Tribunal under the Act consists of three persons one of whom shall be a practising barrister or a practising solicitor of ten years standing. The Appeal Board under the Act has as chairman a judge of the Circuit Court and one of the ordinary members must be a practising barrister or a practising solicitor of ten years standing. There are accordingly in existence two separate disciplinary procedures, one instituted and conducted within the Garda Siochána and one instituted by a member of the public and conducted independently of and outside the Garda Siochána before an independent tribunal with an independent appeal board.

  58. For the respondent it is submitted that precedence should be afforded to the procedures under the Garda Siochána (Complaints) Act 1986 and for this purpose reliance is placed on section 15(2) of the Act which provides as follows:-

  59. (2)

    Where –

    (a)

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

    (b)

    the Commissioner had not appointed a member or members of the Garda Siochána to hold an inquiry under the Regulations into the conduct and

    (c)

    a complaint is made in relation to the conduct

    the complaint shall be investigated under this Act and the investigation under the Regulations, and any statements made in connection therewith, shall be deemed to have been made under and for the purposes of this Act.

  60. The enactment of the 1986 Act indicates that the legislature envisaged in relation to complaints made by a member of the public an independent inquiry rather than an internal Garda inquiry is to be preferred as more likely to inspire public confidence. The Regulations are available in relation to discreditable conduct, misconduct towards a member, neglect of duty, disobedience of orders and other conduct mentioned in the schedule to the Regulations and where no complaint is made by a member of the public. The Act is concerned with conduct described in the fourth schedule to the Act. It is clear however that conduct may come within both the Regulations and the Act. The provisions of section 15(2) confirm me in this view.

  61. The events giving rise to the disciplinary proceedings occurred on the 15th/16th October 1999 and complaint was made in relation to the same on either the 15th or 16th October 1999. The complainants were the parents of the young woman concerned who expressly reserved their right to make a complaint, that is to avail of the Act of 1986. On the 22nd November 2002 the complainants requested a thorough investigation of the conduct complained of and the Garda authorities set about this investigation. The parents had intended to make a complaint once the murder of their daughter had been solved: as yet this has not occurred. On the 26th November 2002 the complainants furnished statements detailing the complaint. On the 23rd January 2003 Chief Superintendent Donohue and Inspector Featherstone who were conducting the investigation met with the family and followed this up with a further meeting on the 23rd March 2003 at which the complainants indicated their decision to pursue a complaint under the Act of 1986 and they did this. On the 25th March 2004 the Garda Siochána Complaints Board deemed the complaint inadmissible and on the 4th May 2004 Chief Superintendent Rock was appointed to investigate the appellants conduct under the Regulations. I am satisfied that thereafter the matter was dealt with appropriate expedition. What the court is concerned with, accordingly, is the delay between the 15th/16th October 1999 and the 4th May 2004 which it must be accepted is of considerable duration. A particular circumstance in this case is the following. The complainant’s daughter was murdered on the 14th September 1999. The period of the Garda investigation immediately following the murder must have been traumatic for the family. The distress as a result of the alleged conduct about which complaint is made clearly added to that. The complainants, the deceased’s parents, expressly reserved their right to make a complaint pursuant to the Act of 1986 once their daughter’s murder was solved and maintained this position throughout. It was the intention of the legislature in passing the Act of 1986 to give precedence to procedures under the Act over those under the Regulations where a complaint from a member of the public is involved as better serving the legislative intention and maintaining public confidence. In these circumstances it is understandable that in deference to the parents wishes proceedings under the Regulations did not proceed as they would have were it not for the parents reservation of the right to proceed under the Act. To ignore the parents and family’s wish and proceed pursuant to the Regulations could only have added to their distress at a very difficult time.

  62. There is thus an explanation for the period of delay but it remains necessary to consider whether the delay has resulted in an interference with the applicant’s right to a fair hearing or if he has been otherwise prejudiced. As to the former the applicant has been aware of the complaint and of its nature as of the 16th October 1999. It is not suggested by the applicant that his entitlement to a fair hearing has been prejudiced.

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

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

    2. He had applied for a position as a detective prior to the events giving rise to the complaint. He had been interviewed by the Detective Unit and had been recommended for the position. He was notified that he had been successful and had been placed on the reserve list. Had he been appointed he would have become entitled to additional allowances, increased overtime and perhaps better hours. In September 2003 he was made aware that he had been removed from the reserve list and he has not been appointed to the Detective Branch.

    Each of these matters are appropriate to be taken into consideration by the court. However every complaint will lead to concern and anxiety and it is not something particular to the applicant in this case. Of itself this will not be a reason which will justify prohibition of disciplinary proceedings.

  64. It is also the case that pending or depending disciplinary proceedings, as in this case, may result in an inability to advance one’s career or profession. Where the complaint of misconduct is subsequently found to be unsubstantiated this will result in hardship. But it is hardship which is an unavoidable consequence of the complaint. In short the court in circumstances such as the present must balance the public interest against the prejudice to the individual concerned. The court is satisfied that in this instance the balance falls in favour of the public interest and in favour of the disciplinary process proceeding. The public interest in this case should prevail.

  65. Decision

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

    O’Donnell J

  67. 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.

  68. 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.

  69. 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.

  70. 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:

  71. 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.

  72. 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.

  73. 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.

  74. 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.

  75. 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 [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.

  76. 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.

  77. 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.

  78. 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:

  79. 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.

  80. 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.

  81. 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:

  82. 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”.

  83. 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.

  84. 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.

  85. 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.

  86. 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.

  87. 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. 110 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.

  88. 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.

  89. 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:

  90. [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.

  91. 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:

  92. 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]

  93. 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.

  94. 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.

  95. 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.

  96. 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.

  97. 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.

  98. 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.

    Justice William M. McKechnie

  99. Background

  100. This case is the latest in a line of several where the correct interpretation of the Garda Síochána (Discipline) Regulations 1989 (S.I. No. 94 of 1989) (the “1989 Regulations”) has to be considered. The issue in the instant appeal is, in my view, a single one; namely, what are the consequences which follow from a breach of Regulation 8, for I cannot conceive of it being even arguable that a breach of such regulation has not occurred.

  101. The background circumstances of this judicial review arise out of the death of Raonaid Murray who was found brutally murdered on the 4th September, 1999, at Silchester Crescent, Glenageary, a short distance from her family home at 17, Silchester Park. This heinous crime was investigated by the National Bureau of Criminal Investigation, in conjunction with the Garda Technical Bureau. Tragically, for all concerned, but in particular for her family, this murder has not as yet been resolved and the investigation remains ongoing.

  102. The appellant, Ian Gillen, is of course a member of An Garda Síochána, having joined the force in July 1982. At the relevant time he was and still remains attached to Kill O’The Grange Garda Station, Co. Dublin. His role in the above murder inquiry was not as part of the investigating team, but rather was that of Liaison Officer. In this capacity he was expected to offer all practical help to the family, such as communicating their wishes or concerns to the investigating team, arranging direct contact with members of that team, acting as a buffer between the press and the public at large, and generally adopting a proactive supporting position. He was appointed to this role immediately after the murder was discovered and continued, as such, until the events giving rise to this case occurred.

  103. On the night of the 15th October, 1999, Garda Gillen took Ms. Sarah Murray, a sister of Raonaid’s, with the permission of her parents, to a local public house to watch a rugby match live on television. They were joined, as planned, by Ms. Audrey Territt and Ms. Jane Bridgeman who were, respectively, a cousin and friend of Ms. Murray’s. Unfortunately, Garda Gillen failed to bring Ms. Murray home at the pre-arranged time. He eventually did so, but not before having driven all three to a club in Dalkey whilst under the influence of alcohol, or so the allegation goes. These and other related matters gave rise to a discussion which Sarah Murray had with her parents later that evening. As a result, Mr. and Mrs. Murray had a meeting with Garda Gillen the following morning and challenged him as to his behaviour the previous night. Being dissatisfied with his response and evidently more so with his conduct, they arranged an interview for later that day with Detective Superintendent Donnellan (as then), who was a senior member of the investigating team. While reserving their right to make a “complaint” at some unspecified future time, they nonetheless related certain information to the Detective Superintendent (D/S) who, after questioning the appellant and having consulted Chief Superintendent (C/S) Cullinane, removed Garda Gillen from his position as Liaison Officer and also removed his name from a reserve list of promotional candidates to the rank of Detective in the Dublin Metropolitan Area. He was replaced in the former role by Sergeant McGraynor, who continued, without mishap, to assist the family thereafter.

  104. Arising out of those events, disciplinary proceedings were initiated in May 2004 against the member concerned under the 1989 Regulations. The subsequent investigation led to a decision being made to charge the appellant with three alleged breaches of discipline. He was served with the appropriate form, B.30, on the 21st January, 2005. He obtained leave from the High Court on the 21st February, 2005, to challenge the Commissioner’s right to continue with the disciplinary process. In fact, that decision was made by the Appointing Officer, but nothing turns on this. Murphy J., in a judgment delivered on the 31st of July, 2006, dismissed his claim. It is that judgment and the resulting order which the appellant now appeals to this Court.

  105. The most important dates and events constituting the background to this case can be stated and described as follows:-

    • 4/9/1999: Miss Raonaid Murray murdered;

    • 5/9/1999 (c): Appellant appointed Liaison Officer;

    • 15/10/1999: Date of offending behaviour;

    • 16&17/10/1999: Garda Gilllen challenged by family. Family, whilst reserving their right, make complaint to D/S Donnellan, who consults C/S Cullinane. Appellant removed as Liason Officer. His name was also removed from a “reserve list” for promotion;

    • 28/4/2002: Written enquiry by family: has internal disciplinary action been taken?

    • 12/7/2002: Family informed that Inspector Pat Ward has been assigned to deal with matter: family decline offer of meeting but indicate that, when ready, they will contact the Inspector;

    • 26/11/2002: The family submit a three-page written complaint with supporting statements from Ms. Murray, Ms. Bridgeman and Ms. Territt;

    • 12/12/2002: C/S Long, who receives the complaint, writes to the Assistant Commissioner recommending the appointment of a Superintendent from Internal Affairs to deal with the complaint;

    • 23/01/2003(c): In response Superintendent Donohue and Inspector Featherstone are appointed: they meet the family who require more time to consider options;

    • 27/03/2003: Family decide to complain to An Garda Síochána (Complaints) Board, established under the Garda Síochána (Complaints) Act 1986;

    • 20/07/2003: Family make written complaint to the Board;

    • 25/03/2004: Complaint declared inadmissible by reason of the fact that it was not made within six months from the date of the conduct complained of;

    • 04/05/2004: C/S Rock appointed by Assistant Commissioner Smyth under the 1989 Regulations to investigate such conduct which allegedly occurred on 15/10/1999;

    • 21/05/2004: Appellant notified of such appointment and served with details of the alleged breaches (Form B33);

    • May 2004/Oct. 2004: Investigation ongoing;

    • 03/11/2004: The evidential results of the investigation were broadly outlined to Garda Gillen who denied the charges;

    • 22/11/2004: Investigation file sent to Assistant Commissioner Smyth, the Appointing Officer;

    • 14/01/2005: Decision by such officer to continue with the proceedings. Form B30 completed as is Form B33B, which includes the names and statements of intended witnesses;

    • 21/01/2005: Appellant served with both forms;

    • 21/02/2005: Leave (Macken J.) is obtained from the High Court to move judicial review proceedings.

  106. The Regulations

  107. Regulations 8, 9 and 10 of the 1989 Regulations play a central role in the sequential process of how and when an investigation is initiated into an alleged breach of discipline and in the crucial decision as to whether or not to proceed to inquiry thereafter. As such, it is necessary to quote the relevant sections from each such regulation. These are as follows:-

  108. 8.

    (1)

    Subject to Regulation 7, where it appears that there may have been a breach of discipline, the matter shall be investigated as soon as practicable by a member not below the rank of inspector (in these Regulations referred to as an investigating officer).

    (2)

    An investigation officer shall be appointed by a member ( .... the appointing officer .... ) who is not below the rank of chief superintendent.

    9.

    (1)

    As soon as practicable after his appointment, an investigating officer shall inform the member concerned in writing –

    (a)

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

    (b)

    that he is investigating the matter.

    (2)

    ....

    (3)

    ....

    10.

    (1)

    Upon completion of an investigation under Regulation 8, the investigating officer shall as soon as may be submit to the appointing officer a written report of the investigation, together with copies of any statements made.

    (2)

    Upon receipt of a report under the Regulation, the appointing officer shall without avoidable delay-

    (a)

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

    (b)

    if he decides to continue the proceedings, cause to be entered on a form ( .... discipline form) such particulars of the breach of discipline alleged as will leave the member concerned in no doubt as to the precise nature of it.

    (3)

    ....

    [emphasis added]

  109. In addition, note should be had of Regulations 6 and 7. In summary, the combined effect of these regulations is to make provision for, inter alia:-

    1. what act or omission constitutes a breach of discipline (Regulation 6 (R. 6) and the Schedule);

    2. the informal disposal of a breach of discipline which is minor in nature (R. 7);

    3. the appointment of an Investigating Officer who is appointed by a rank not lower than Chief Superintendent (Appointing Officer) to investigate any alleged breach of discipline (R. 8, Form B33);

    4. the member concerned to be informed of such investigation and of the matters, in brief outline, being enquired into (R. 9, Form B33A);

    5. the Investigating Officer to report to the Appointing Officer on the completion of the investigation (R. 10);

    6. the Appointing Officer to decide whether or not to continue with the proceedings and, if so, for the completion of a discipline form in which the alleged breaches of discipline are set forth (R. 10(2), Form B30);

    7. the service on the member concerned of the discipline form and for the giving of information regarding witnesses, their statements and other relevant information (Regulations 11 & 12, Form B33B); and

    8. the holding of an inquiry into the alleged breaches (R. 14).

    The Charges Alleged

  110. As appears from the discipline form in this case, Form B30, the appellant was charged with three breaches of discipline, arising out of separate acts of personal behaviour on the night/early morning of the 15th/16th October, 1999, each of which is alleged to constitute a breach of discipline within the meaning of R. 6 and Ref. No.1 of the Schedule. The three alleged breaches are:-

  111. (1)

    failure to abide by an agreement with the parents of Sarah Murray to take their daughter home from Baker’s Corner Public House after the first half of an international rugby match;

    (2)

    driving Sarah Murray, Audrey Territ and Jane Bridgeman from Baker’s Corner Public House to the Club Bar in Dalkey, having already consumed a number of pints of beer; and

    (3)

    in the presence of Jane Bridgeman, urinating on a tree at the scene where the crime allegedly took place.

    The Pleadings

  112. In the statement grounding the application for judicial review, Garda Gillen seeks a declaration that the Commissioner’s failure to act expeditiously in the initiation of proceedings against him amounts to delay, described as being both inordinate and inexcusable. This, he alleges, has breached

    1. his right to natural and constitutional justice;

    2. his legitimate expectation as to expedition; and

    3. the relevant provisions of the 1989 Regulations.

    As a result, he seeks to prohibit the further continuation of the disciplinary process now standing against him.

  113. In his supporting affidavit, the appellant says that after being removed from his position as Liaison Officer on the 16th or 17th October, 1999, he heard nothing further about this matter until September 2003 when Inspector Lundon relayed information obtained from Superintendent Neill, to the effect that the Murray family made a complaint against him, although he, the Inspector, had not been appraised of its precise nature. Apart from these meagre details, the member concerned was not further enlightened even by subsequent correspondence and discussion(s) had with his superiors, save that in February/March 2004 C/S Long denied having any knowledge of such complaint.

  114. In addition, the appellant asserts individual prejudice in two particular ways, firstly, that as a result of the decision to proceed, which inevitably will be followed by the holding of an inquiry, he is gravely worried, concerned and distressed to such an extent that he has required support from Dr. Corry, a psychiatrist, and, secondly, that his promotional prospects have been interfered with, in that, without his knowledge, his name has been removed from a “reserve list” for promotion to a higher rank (para. 75 supra). This information only emerged when he obtained a copy of a letter dated the 2nd November, 2004, sent by Detective Chief (D/C) Superintendent Donnellan (as then) to C/S Rock. In addition, he complains generally about the overall unfairness and injustice of having to meet these charges so many years later.

  115. It should be noted that the member concerned vigorously denies all such charges.

  116. The first respondent (or “the Commissioner”), in opposition, asserts that the leave application was not applied for promptly, or in any event within the required three month period. Therefore, it should have been refused by virtue of Order 84, rule 21 of the Rules of the Superior Courts. In this regard, it is said that time began to run from the 21st May, 2004, when Garda Gillen was served with Form B33 (para. 77 supra).

  117. In addition, but without prejudice to the point last made, the Commissioner says that as the Murray family in October 1999 reserved “their right to make a complaint” at some future time, no investigation could be commenced until the family had made a decision in this regard, or at least until a formal written complaint was received from them. Moreover, it is pleaded that once a complaint was made under the Garda Síochána (Complaints) Act 1986 (“the 1986 Act”), then by virtue of s. 15(2) thereof, the internal disciplinary inquiry had to be stood down pending a decision on such complaint from the Garda Síochána Complaints Board (“the Complaints Board”). Once that decision was made, as it was in March 2004, the subject process was immediately commenced and thereafter it proceeded diligently and with due expedition. All other matters alleged are denied as traversed.

  118. Several affidavits were filed in support of the Commissioner’s position who was the only respondent to take part in this action. D/C Superintendent Donnellan recalls a meeting with Mr. and Mrs. Murray on the 16th October, 1999, at which they complained about Garda Gillen’s behaviour on the previous night. He makes specific mention of Sarah Murray having been returned late and of the appellant driving, having consumed alcohol. He took the action mentioned at para. 75 above. Further, he accepts that the Murray family reserved their right to make a complaint in the future, which right he acknowledged. However, as appears from his letter of the 2nd November, 2004, the D/C Superintendent asked Mr. Murray at that time “ .... if he was satisfied that I would deal with the complaint and he said he was but he wished to reserve the right to make a complaint about the matter in the future. I took this to mean if he was not satisfied with the action I took in relation to the complaint he reserved the right to make a complaint about the matter in the future. I explained the action that was taken in relation to Garda Gillen to Jim and Deirdre Murray and they did not say at any time that they were not satisfied with the action taken” (Exhibit 1.G. 6 in the appellant’s grounding affidavit). Finally, he acknowledges that the decision to initiate disciplinary proceedings is a matter for the Commissioner. Nonetheless, he says that it was appropriate to have regard to the views of the Murray family.

  119. In his affidavit, Superintendent Neill sets out the background information from which the chronology outlined at para. 77 supra is compiled. Some of that information is further referred to in more detail later in this judgment. He says that once the Chief Executive of the Complaints Board made his decision on the 25th March, 2004, to reject the complaint as being inadmissible, the internal disciplinary inquiry was set in motion almost immediately, and thereafter was proceeded with as soon as practicable at all levels. To demonstrate this, he identifies the relevant dates and events which occurred between the 4th May, 2004, and the 14th January, 2005. He denies that these charges have in any way affected the appellant’s promotional prospects and points out that on one occasion only since 1999 has Garda Gillen attended for interview, seeking a rank superior to that which he obtained when joining the force.

  120. In addition, he claims that for a variety of reasons, including the absence of a written complaint, respect for the wishes of the Murray family and their decision to invoke the provisions of the 1986 Act, it was neither possible nor appropriate for the Commissioner to utilise the 1989 Regulations at any time sooner than what he did.

  121. High Court Judgment

  122. 19. In his judgment delivered on the 31st July, 2006, Murphy J. stated:

    1. that the delay, in its individual segments and overall, was unduly lengthy and could be criticised:

    2. that such criticism also applied to the Complaints Board, it being difficult to understand why it took twelve months to rule the complaint inadmissible, notwithstanding the clear wording of s. 4(1)(a) of the 1986 Act; and

    3. that whilst some form of internal investigation was taking place, those involved at that time, being Inspector Ward, Superintendent Donoghue and Inspector Featherstone, did not appear to have been appointed under Regulation 8 of the 1989 Regulations.

  123. The decision of the learned trial judge, however, seemed to turn on his view as to what the applicant had to establish in order to succeed. At p. 20 of the judgment he said:-

  124. To succeed the applicant has not only to prove delay but that it is unreasonable so as to be an unfair procedure and thus unjust and unconstitutional.

    Addressing himself to this question, the learned trial judge, having carefully considered the evidence, concluded that no prejudice had been established, that credible evidence existed on which a tribunal could come to a decision against the appellant and that the “length of delay as compared with the more serious allegations of a criminal nature are not unreasonable such as to render the procedures unfair, unjust or unconstitutional”. On one or more of such bases he refused relief.

    Submissions on Appeal: The Appellant

  125. The central submission made on behalf of Garda Gillen is that, given the timeframe outlined above, the initiation of proceedings against him in May 2004, breached the mandatory provisions of the 1989 Regulations in that such proceedings were not commenced “as soon as practicable”, as provided for by R. 8 thereof. That phrase should be understood in the manner outlined in Re Butler [1970] I.R. 45 and, in particular, in a passage at p. 55 of the judgment of Budd J. In essence, the word “practicable” has the same meaning as “feasible”. As so understood, it is suggested that no justification has been offered to explain or excuse the inordinate and inexcusable delay in commencing the statutory process as provided for by such regulation.

  126. It is further claimed that the reasons advanced by the Commissioner in justifying this delay are not capable of sustaining the underlying assertion. The process is not dependent on a written complaint, nor can it be controlled by civilians. Whilst the wishes of the Murray family are noted, such cannot be used to defer or postpone the making of the decision imposed on the Commissioner by the regulations. All necessary information was available by the 17th October, 1999. Therefore, if it was intended to formally discipline the appellant, the same should have been commenced soon thereafter.

  127. In support of these submissions, the Court has been referred to McNeill v Garda Commissioner [1997] 1 I.R. 469 (“McNeill”) and, in particular, to passages at pp. 479 and 484 of the report. McCarthy & Dennedy v An Garda Síochána Complaints Tribunal [2002] 2 I.L.R.M. 341 (“McCarthy”) is also relied upon with particular emphasis being placed on the following from the judgment of Geoghegan J. cited at p. 357 of the report:-

  128. .... in interpreting the statutory provisions it must be borne in mind that the Oireachtas clearly intended expedition both in the interests of the complainant and in the interests of the members complained about. It could never have been intended that there was some small delay in the procedures and possibly indeed delay engineered by the garda authorities themselves, the matter could never be processed further and this would be grossly unfair to a complainant not in any way responsible for the delay.

    The learned judge continued:-

    .... a disciplinary complaint against a member of the force is a serious matter and under any reasonable interpretation of the legislation it would have been intended that the expedition was also in the interests of those members. Accordingly, a reasonable balance must be struck between what could be conflicting interests in determining whether in any given circumstance there was a delay which offended the time provisions in the Act irrespective of whether the time provisions are to be regarded as mandatory or directory.

    Reference is also made to Ruigrok v Commissioner of An Garda Síochána [2005] IEHC 439, (Unreported, High Court, Murphy J., 19th December, 2005) (“Ruigrok”).

  129. Finally, the appellant also responds to the finding by the trial judge that the leave application was not made promptly or in any event within three months from the relevant date.

  130. The Commissioner

  131. 25. In reply, whilst the Commissioner also referred to Ruigrok and to the decision of in Re Butler, his essential submission draws heavily on the dissenting judgment of Denham J. in McNeill, and on subsequent cases which afford support for such view. Having referred to a number of “delay” cases, including Barker v Wingo (1972) 420 U.S. 514., the learned judge, who effectively based her decision on that American authority, concluded her judgment by saying at p. 496:-

  132. .... Delay is always undesirable. But to succeed the applicant has not only to prove delay but that it is unreasonable so as to be an unfair procedure and thus unjust and unconstitutional. In the circumstances of this case considering the factors as stated previously, I am satisfied that the applicant has not discharged the burden of establishing that the delay in itself in this situation was so long as to be unreasonable, an unfair procedure and thus unjust and unconstitutional. I would dismiss the appeal.

  133. Much reliance is also placed upon the decision of McCarthy, (paras. 94, 131 herein), not only in terms of its ratio decidendi, but also in terms of what Geoghegan J. had to say about McNeill, in particular about the observations of Hamilton C.J. who had suggested that the relevant provisions of the 1989 Regulations were mandatory in nature, and as a result further proceedings would be prohibited if a breach was established. Geoghegan J., who described this observation as potentially being “obiter”, went on to express “doubt as to whether a 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”. Kennedy v Commissioner of An Garda Síochána [2008] IEHC 72, (Unreported, High Court, MacMenamin J., 14th March, 2008) (“Kennedy”) was also referred to and, in particular, the view of MacMenamin J. who declared that:-

  134. .... a close analysis of the three judgment in McNeill renders it impossible to conclude that it is authority for the preclusion of the normal delay jurisprudence, a matter referred to only in the judgment of Hamilton C.J.

  135. The Commissioner also submits that there is “no reality” to an investigation being initiated or pursued under the 1989 Regulations unless the complaint is in writing and unless witnesses are both willing and available to participate. The instant situation is contrasted with the making of a complaint under the 1986 Act, with reference being made in that regard to a passage from the judgment of Murray J., at p. 352 of McCarthy.

  136. Moreover, it is suggested that by virtue of s. 15(2) of the 1986 Act, the process provided for therein takes precedence over any investigation under the 1989 Regulations. Therefore, as and from the 20th July, 2003, when the family made a complaint under the Act, all further steps within the internal process had to cease.

  137. Further, it is denied that Garda Gillen has suffered any prejudice by reason of the existing proceedings under the 1989 Regulations.

  138. In conclusion, this Court is invited to embark upon a balancing exercise, involving on the one hand society’s right to prosecute, and on the other, the member’s right to expedition, with the outcome, in all circumstances, being determined by the individual facts of each specific case. As no prejudice exists in the instant case, it is suggested that having regard to all relevant circumstances the learned trial judge was correct in dismissing the applicant’s case.

  139. Conclusion

  140. Before dealing with the substantive issue, it will be convenient to dispose of the point raised by the Commissioner in his pleadings regarding compliance with O. 84, r. 21 of the Rules of the Superior Courts. In his judgment the learned trial judge dismissed the review application on the basis of the applicant’s delay in seeking leave, but, on a “without prejudice” basis, went on to consider the arguments raised. In view of this very proper course adopted by the judge, I would not consider it necessary to deal with the issue but for the fact that it may have some more general relevance than simply to this case. It is therefore worthwhile to say something briefly about the point.

  141. Without deciding at what earlier stage(s) of the process it might be appropriate to seek judicial review, I am quite satisfied that the decision by the Appointing Officer to continue with the proceedings (R. 10(2)), is a critical step in imperilling the character, good name and livelihood of the member concerned and accordingly is an event which, in principle, must be amendable to judicial review. It is that decision which gives rise to the service of Form B30, which is the discipline form. If, as was suggested, the May 2004 decision to commence the process was to be regarded as the only point of challenge, I have no doubt but that the response would allege prematurity and would assert that, until a decision to continue had been made, the applicant could not be said to be in danger from what was, up to then, purely a matter of investigation. In my view, therefore, the appellant could not be criticised for exercising deferment in the manner in which he did. The decision to proceed was not made until the 14th January and was not known to him until the 21st January, 2005. He sought and obtained leave within four weeks. Therefore, he acted with great promptitude and well within time. His judicial review could not therefore turn on this point.

  142. Nature and Meaning of the Regulations

  143. It has been said in several cases that proceedings against members under the regulations are neither civil nor criminal in character (McNeill: Hamilton C.J. p. 479; Denham J. p. 493; Ruigrok: Murphy J.; and Gibbons v The Commissioner of An Garda Síochána [2007] IEHC 216, (Unreported, High Court, Edwards J., 30th July, 2007)), they are disciplinary in nature, determined by an inquiry tribunal and on appeal, by an Appeals Board. Further, they are what they purport to be, namely, a means of asserting and maintaining general order and discipline so that the public can have confidence in a well structured and functioning Garda Síochána. Because of the unique role which the Gardaí play in our democratic society, it is no surprise to see that since the foundation of the State, matters of discipline have been regulated by statute, first commencing with the Garda Síochána (Discipline) Regulations 1926, and presently resting with the 1989 Regulations, which replaced their immediate predecessor of 1971. On entering the force this system applies and continues to apply to all members in service, in respect of matters within the scope of the regulations, as determined by R. 6 and the Schedule thereto. It is therefore quite clear that the regime is not common law based - it is rooted solely in the regulations.

  144. The following passage from the judgment of Hamilton C.J. in McNeill at p. 479 of the report is entirely to the same effect. The learned Chief Justice said:-

  145. The provisions of the said regulations are binding not only on the applicant but on the respondent and the entire question of delay must be considered in the context of such regulations and the requirements thereof.

    In these proceedings, the court is not readily concerned with the principles established with regard to the effect of delay on either civil or criminal proceedings because the proceedings instituted by the respondent against the applicant are neither civil nor criminal. They are in respect of breaches of discipline alleged to have been committed by the applicant as a member of the Garda Síochána and must be dealt with in accordance with the provisions of the Disciplinary Regulations, which set forth in detail the procedure for dealing with alleged breaches of discipline by a member of the Garda Síochána.

  146. If this be correct, as I respectfully believe it is, two consequences follow: firstly, as a self-contained disciplinary code, which is neither civil nor criminal in nature, case law which has been developed by reference to such proceedings is not relevant and, secondly, the issue of regulation breach, and, if established, the issue of resulting consequences are purely matters of statutory interpretation. This is not to say, of course, that the concept of time, time periods, or, if you wish, delay, may not be relevant. On the contrary, such matters may be of considerable importance so as to determine whether the impugned step was or was not carried out within the timeframe as specified. In this sense, and for this purpose, both delay and explanation may be undoubtedly relevant.

  147. However, this relevance is not referable to the generalised rules on delay, whether civil or criminal. This is simply because the issue is not a delay issue - it is a compliance issue. Notwithstanding such however, there will be some cases where before one can say whether the required step was carried out, for example, “as soon as practicable”, an evaluation of the material circumstances in a particular time period may be required. If such an exercise becomes necessary, its conclusion is not measured against thresholds such as inordinate or inexcusable delay or similar terms. It is not embarked upon for this purpose. It is undertaken to determine breach or no breach. That is the reason why it is relevant. Unless this is kept clearly in mind it is most likely that the incorrect question will be focused upon, giving rise, most probably, to the incorrect answer.

  148. In stating as I have, I should make it clear that I am addressing the interpretative point only; expedition or delay may also be raised under a number of other headings as, for example, where a breach of fair procedures or a denial of constitutional justice is in issue. Such may arise in a variety of ways depending on circumstances. In my view, however, the principal point in determining breach or no breach does not depend on the application of the general rules of delay; rather one must turn to the regulations themselves so as to determine any disputed issue arising out of their operation.

  149. Issue No. 1: Alleged Breach of R. 8 of the 1986 Regulations

  150. The regulations have established a scheme whereby discipline within the force is operated and controlled by the force itself. This is subject only to the appointment of an Appeals Board (R. 25) and to a limited number of other exceptions such as the requirement to obtain ministerial approval for the dismissal of a non-probationary member under R. 40. So, in essence, the force operates, supervises and implements discipline for its members in accordance with this regime.

  151. Regulation 8 is the central regulation in this case. In fact, it is the only regulation really in issue, but an understanding of its true meaning is informed by a consideration of some other regulations, most of which are either set out or referred to at paras. 78 and 79 above. Regulation 8 only comes into play where “it appears that there may have been” a breach of discipline, a breach presumably of a type not appropriate for disposal under the informal procedure set out in Regulation 7. Where it so appears the relevant sequence of what should occur is that:-

    • the matter shall “be investigated as soon as practicable”: this by an investigating officer;

    • “as soon as practicable” after such appointment, that officer shall inform the member concerned and give him/her brief details of the allegations under investigation;

    • once the investigation is complete the investigating officer shall “as soon as may be”, report to the person who appointed him; and

    • that person, the appointing officer, shall “without avoidable delay” decide whether or not to proceed and, if so, he must create a discipline form in which the alleged breaches are specified (Regulations 8–10).

  152. These are the most direct provisions applicable on the “expedition point”, but it is also useful to note that once the discipline form is served, the member concerned has only fourteen days in which to admit or deny the charges, after which the appointing officer shall “without avoidable delay” cause an inquiry to be held in relation to such charges (emphasis added) (Regulation 14(1)).

  153. Be that as it may, it can confidently be said that, whilst the relevant phraseology differs slightly as between the various steps specified in the regulations, there can be no doubt but that each step in the process has a demand of expedition within it and an infusion of urgency to it.

  154. This element of exigency can be found in all of the regulations enacted since 192. However, the original regulations, together with a minor amendment made in 1942, were in different format than the later regulations and, therefore, are not in context informative. The present regulations very much mirror image their predecessor, but it is of significant interest to note that the time elements expressed as being “as soon as practicable” in R. 8 and “as soon as may be” in R. 10(1) were inserted for the first time into the 1989 Regulations. Therefore, it is clear that the Minister for Justice, at that time, injected an added time urgency, in each of those important steps of the process, evidently doing so for some purpose and for some reason. This must be regarded as being above and beyond the general desirability of expedition, as the same must be taken as applying in any event.

  155. The reason for such urgency or expedition, call it what you wish, was captured by O’Flaherty J. in McNeill at p. 485 where he said:-

  156. The Disciplinary Regulations require that the matter should proceed with a degree of expedition at every stage. And for good reason; members of the Garda Síochána have special privileges as well as special responsibilities not shared by ordinary citizens; therefore, if 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 .... similarly, from the perspective of members of the Garda 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 that it should be brought forward with a degree of expedition and they should be given a chance to meet it ....

    I respectfully agree.

  157. As noted, R. 8 requires the investigation to be carried out “as soon as practicable”. I am not certain how useful it is to try and re-describe that requirement so as to get closer to its true meaning. Contrasting it with a phrase such as “as soon as possible”, or with the adverb “forthwith”, undoubtedly can offer a sense of its positioning, but overall I think that the phrase speaks much for itself. In so far as assistance can be obtained however, I have found the judgment in Re Butler helpful. In that case a condition of an insurance policy required notification of an accident to be given “as soon as practicable” after its occurrence. Budd J. who described the word “practicable” as meaning “capable of being .... carried out in action .... feasible”, went on to say that “in order to discover what is practicable in the circumstances, [this] involves determining what difficulties there are that should properly be taken into consideration having regard to that which is enjoined to be done.” This means that with such an exercise, care must be taken to ensure that only factors material to the feasibility of acting in the manner required are taken into account, and that all other circumstances not relevant to the execution of the act(s) under review, are isolated and disregarded. Put another way, in the context of the instant case, one must ask what difficulties existed between October 1999 and May 2004, capable of legal recognition and this having legal effect under the regulations, which made the invocation of the process unattainable or unachievable before the latter date?

  158. Against this background the first issue for consideration relates to the delay in the initiation of the investigation which did not take place until the 4th May, 2004. In respect of what occurred after the appointment of C/S Rock on that occasion, I see no complaint regarding expedition or otherwise, subject only to the decision taken on the 14th January, 2005, to proceed with the inquiry which gave rise to the leave application. As appears from para. 81 supra, it is claimed that this delay not only breached a number of non-regulation rights, but also breached Regulation 8 itself. Although in my view this is demonstrably so, nevertheless I should deal with the point before considering the consequences of the breach, which in reality is undoubtedly the essence of the issue. In fact, it is the essence of the case for the reasons later explained; the other points raised are not established on the facts.

  159. What is relied upon by the Commissioner as an answer to this breach allegation is, firstly, the reservation by the Murray family of what is described as “their right” to make a formal complaint at some time in the future, and the “respect” which the Commissioner says he accorded to these views; secondly, the absence of any written complaint until quite late in the day; and thirdly, the statutory consequences of s. 15(2) of the 1989 Act, which arose following the making of a complaint by the family in July 2003.

  160. It is common case that the entirety of the offending conduct, as alleged, took place on the 15th/16th October, 1999. It is this conduct only which gave rise to the three alleged breaches of discipline preferred against Garda Gillen, namely, a failure to return Sarah Murray home on time; driving a motor vehicle having consumed alcohol; and thirdly, urinating at or near the spot where the murder had taken place. It is uncontroverted but that D/S Donnellan (as then) was informed of the events giving rise to the first two mentioned breaches on the morning of the 16th October. It is unclear when he became aware of the circumstances surrounding the third breach as neither in his statement of the 2nd November, 2004, or in his replying affidavit does he make mention of such. Notwithstanding this, it is fact that from the outset he was aware of the identity, whereabouts and availability of. Murray, Territt and Bridgeman, the three witnesses in question, and also that he had ready access to them. As representing the Garda force, he had the means of interviewing these individuals and obtaining full statements from them. Had he chosen to do so, I have every reason to believe that he would have been fully appraised of all matters which had occurred the previous evening. Moreover, even an interview with Sarah Murray herself would have been sufficient as the only witness to the third allegation, Jane Bridgeman, had told her “the next day” of what had occurred. (See the letter of the 26th November, 2002, together with her accompanying statement). Therefore, with every justification, I proceed on the basis that all relevant evidence was either known by or was immediately available to An Garda Síochána by the 17th October, 1999. Nothing within the disciplinary system was done with this information until May 2004, about four years and seven months after its availability. The reasons offered for such inactivity are referred to at para. 117 supra and are dealt with in the succeeding paragraphs.

  161. This timeframe can conveniently be looked at through different periods, the first of which ends in April 2002 during which, after the initial steps were taken, nothing else occurred. The second period can be regarded as commencing on the 28th April, 2002, and ending on the 20th July, 2003. The former coincides with a written inquiry from the family as to what internal action had been taken against the appellant. The latter relates to the making by the family of a complaint to the Complaints Board under the 1986 Act, although, in fact, they had indicated an intention of doing so some four months earlier. During that fifteen month period Inspector Ward, Superintendent Donoghue and Inspector Featherstone were, at different times, appointed to become “involved” in this matter. I use such description as it remains quite unclear as to the “capacity” in which they were involved, who or under whose authority they were “appointed” or what their “remit” was. The thinking behind this has not been explained. What is certain, however, is that they were not appointed under Regulation 8. In addition, it should be noted that during this period the family made a formal written complaint in November 2002 with supporting statements. Apart from expanding on detail, I do not believe that anything of substance materially different to what was available to D/S Donnellan in October 1999 emerged from this documentation. The explanation for this period of inactivity is similar to that given to cover the first period.

  162. The third period coincides with the making of a complaint in July 2003 under the 1986 Act, and its rejection in March 2004 by the Chief Executive who ruled it inadmissible for being out of time.

  163. The final period can be regarded as running from the date of that decision up to the service of Form B30 on the appellant which took place on the 21st January, 2005. No complaint is made in respect of this period, it being accepted that the requirements of the regulations were satisfied at each stage of the process, once C/S Rock was appointed under the 1989 Regulations on the 4th May, 2004.

  164. The grounds advanced to justify the Commissioner’s inactivity under the regulations from October 1999 to April 2002 can briefly be restated as being, firstly, the reservation by the Murray family of their right to subsequently complain, secondly, the respect which the force saw fit to give to that view, and thirdly, the absence of a written complaint, which was first made only in April 2002. If these reasons were given in earnest and intended to be taken seriously, they display a fundamental misunderstanding of the role of the Commissioner and that of his officers under the regulations, and also a total disregard of the rights of the member concerned. Once it emerges that a breach may have occurred, which the regulations cover, and which has not been otherwise disposed of, an appropriate officer is obliged to engage with the process until a decision is reached, either by discontinuance or inquiry verdict. The regulations make no mention whatsoever of a complaint, let alone one in writing, and are entirely oblivious as to the manner by which the authorities become aware of a possible breach. Once it is known, it is decision time - proceedings are or are not appropriate.

  165. This situation is strikingly different to the initiation process under the 1986 Act where its procedures are activated only on receipt of a complaint from a member of the public. That is not the situation in the instant case. Moreover, it would be untenable, from the viewpoint of the Commissioner, the member concerned and the public at large, and would be in clear violation of the statutory regime if the maintenance of discipline and the upholding of proper standards in the force were to be controlled or overtly influenced by civilian members of society, no matter how sympathetic the underlying context might be. If that were so, the consequences would be grossly disabling in that the Gardaí would be powerless even to investigate until the civilian said so or otherwise decided to commit his evidential information to writing. This is not what the regulations have provided for. Once information is available the procedure is available and the process is in play. Finally, I cannot find within the papers any evidential basis for suggesting that the family’s reservation was to continue until the murder had been resolved. If that is correct, the observations mentioned in this paragraph are even more to the point, as, if persisted with, nothing would have occurred to date and perhaps never would. Such would result in the unilateral paralysis of the regulations which simply could not be as intended.

  166. In addition, I cannot understand what importance is sought to be given to D/S Donnellan’s acknowledgement of the family’s right to reserve. It clearly could not and does not have legal significance. It may well be that it was intended to be no more important than simply an acknowledgement of what the family had said, although this is not what the Commissioner portrays it as being or how he wishes the court to understand it. However, in my view, it is a strong possibility that by removing the appellant at the time, the Senior Officer felt that the problem had been resolved (summarily), and that in the expectation of no further family intervention, recourse to the regulations would not be had (para. 87 supra). In any event, I am satisfied that the reasons so advanced for this period are entirely unrelated to the requirements of R. 8 and therefore cannot properly be taken into account. It follows, in my view, that this delay of over two and a half years must be interpreted as meaning that the investigation was not initiated “as soon as practicable”. In the circumstances, the phrase is incapable of any other meaning. Consequently, by reference to this period alone there has been a breach of this statutory obligation.

  167. I would reach a similar conclusion with regard to the following period ending in July 2003. Once more, unregulated and non-structured contact and communication with the family, and utter subservience to their indefinite holding position, are not material factors in the regime under consideration. Furthermore, there were two specific events during this time which require comment: the first is that by reference to s. 4(1)(a) and s. 4(1)(3)(a)(iv) of the 1986 Act, it is obviously clear that for a complaint to be valid it must be made within six months from the date of the offending behaviour, which in this case was October1999. Whilst I am not suggesting that the Garda had a duty to so advise the family in this regard, it is nonetheless rather surprising that such possibility was never apparently even raised with them. In fact, in later correspondence the family, either by outright complaint or at least with a sense of grievance, claimed that the Gardaí should have informed them of this time limit in October 1999, and certainly should have done so during the later engagement between July 2002 and March 2003. No explanation has been forthcoming in this regard. An additional striking feature of this period was the Commissioner’s entire failure to have any regard to the position of the appellant, which is in sharp contrast to his attitude towards the family.

  168. The second observation is that a full written complaint was made by the family to the Gardaí in November 2002. Therefore, the Commissioner could no longer rely on the absence of such a complaint for not moving. His inactivity therefore over the following eight months, particularly in light of the previous period, is in my view likewise unjustified for the reasons given above.

  169. The nine months from July 2003 to March 2004 is explained by suggesting that once a complaint had been made to the Board, then under s. 15(2) of the 1986 Act no internal investigation can be commenced, and if in existence must be stood down. I am far from agreeing that this is the correct construction of the provision in question. However, being satisfied that by reference to the periods above mentioned there has been a breach of R. 8, I do not consider it necessary to further deal with this point.

  170. In conclusion on this issue, I have no doubt but that an investigation could have been carried out in the immediate aftermath of the October 1999 incident. All of the evidence was known and all of the witnesses readily available. Whilst sensitivity was required because of the ongoing murder investigation, a conduct inquiry standing outside the investigation could well have been accommodated within the required time. I cannot identify any factors properly to be considered which might remotely bring the initiation of this process within Regulation 8. It therefore follows that the provision has been breached.

  171. Issue No. 2: Consequences of Breach

  172. As outlined above (para. 110), the key regulations not only specify time periods but they also require that the matters referable to such periods “shall be .... done ....” (emphasis added). For example, under R. 8 “the matter shall be investigated ....” Likewise with Regulations 9 and 10. However, the regulations do not go on and spell out the intended consequences of a failure to comply with such requirements. Yet the court must reach a decision in this regard. It does so as a matter of interpretation having considered the regulations as a whole.

  173. In the McNeill judgment (see also para. 105 supra), Hamilton C.J., who described the obligations arising under R. 8 as mandatory, held that by reason of its breach, all steps subsequently taken were “void and of no effect”. An injunction to reflect this view would therefore issue. The steps in question were the decision to continue with the proceedings, the service of certain documents on the member concerned and the establishment of an inquiry under Regulation 14. I cannot see any distinction in principle between McNeill and the instant case in this context, even though the review proceedings in this case were taken at an earlier stage of the process. Logically, therefore, if this view of the Chief Justice is correct then, any further movement with the instant inquiry must be prohibited. There were two other judgments delivered by the court, a concurring one by O’Flaherty J. and a dissenting one by Denham J.

  174. In the years which have followed McNeill, it is fair to say that whilst some judgments have fully endorsed the rationale of the Chief Justice, others have been less enthusiastic in doing so. A case relevant in this context is the McCarthy decision, which is also referred to in the earlier part of this judgment where the submissions are outlined. That was a case arising under the 1986 Act where two issues arose, but only one of which is of interest to us, and that is the delay point. Under the relevant provisions of the Act, both the Chief Executive of the Board and the Commissioner are obliged to do various things “as soon as may be”. It was alleged that such provisions were breached and as a result the intended inquiry should be stopped. The relevant sections of the court’s judgment on this issue, given by Geoghegan J., (para. 94 supra) can be summarised as follows:-

    1. that such expedition which the provisions clearly intended had to embrace the interests of both the complainant, being a member of the public and the Garda complained against;

    2. that it could never have been intended that some “small” delay, possibly engineered by the Gardaí themselves, would have the effect of stopping the inquiry as this would be grossly unfair to a complainant who may not himself have been in any way responsible for such delay;

    3. that in any event the hearing of a disciplinary complaint against a member was a serious matter and on any interpretation of the legislation had to be dealt with expeditiously; accordingly,

    4. irrespective of whether such provisions were to be regarded as mandatory or directory, a reasonable balance had to be struck between these conflicting interests when determining if the delay relied upon offended the timeframe given.

  175. The learned judge also referred to McNeill and in the process made the following observations:-

    1. that the finding of Hamilton C.J., to the effect that compliance with R. 8 was mandatory and that if breached all steps taken thereafter were void and of no effect, was not essential to his decision and should be regarded as “obiter”;

    2. that O’Flaherty J. had expressed no view on this aspect of the case;

    3. that he doubted whether a breach of an expedition obligation in the context of a stepped process was fatal, or, as he described it, was a condition precedent to the taking of the next step. However, he reserved a final view until the issue arose;

    4. that it cannot be regarded as certain that the use by the Chief Justice of the word “mandatory” was intended in contra-distinction to “directory”; but that in any event,

    5. the distinction between “mandatory” and “directory” and the differences of approach between the majority and minority view in McNeill may not be significant if his view of the phrase “as soon as may be” was accepted as meaning “as soon as may be reasonably practicable in all the circumstances”.

  176. Another case dealing with the regulations is Kennedy, referred to above. In November 2002 the Garda authorities had grounds for believing that the applicant may have accessed pornographic websites on his work computer, during the course of his employment. Almost immediately a criminal investigation commenced, which continued until the D.P.P. entered a nolle prosecui in February 2005. On the 15th July, 2003, disciplinary proceedings under the 1989 Regulations were initiated with the appointment of an Investigating Officer. Whilst various steps were taken under the regulations, a decision was made in January 2004 to defer the investigation until the criminal case had been concluded. Immediately after the nolle prosecui was entered, the Garda authorities decided to recommence the investigation. However, from February 2005 to May 2005 the applicant was on sick leave suffering from stress. Correspondence then followed: the investigation file was sent to the appointing officer in June 2005 and by July of that year a disciplinary form, Form B30, had been served on the member concerned. Subsequently he obtained leave to judicially review the decision of the Appointing Officer to establish a Board of Inquiry under R. 14 of the 1989 Regulations.

  177. The learned judge, MacMenamin J., extensively reviewed the facts of the case and commented on both McNeill and McCarthy. He held that there had been no breach of the regulations and accordingly refused relief. The basis for this decision was that in the circumstances, particularly in light of the criminal proceedings, the process under the regulations had been carried out “with the required expedition”. He, therefore, did not have to address the question of relief, which of course is the only context in which the controversy about whether the regulations are “mandatory” or “directory” can arise.

  178. Nonetheless, in his decision, the judge distinguished the case before him from McNeill and did so in a manner which reflected his overall approach to the law in this area. In addition, however, he took the view that McNeill was a case which should be considered as having been decided on its own special facts and cited in support what he described as the “subsequent authoritative decision” in McCarthy. Moreover, he also took the view that the regulations were directory and not mandatory and that McNeill was not an authority for the proposition that the ordinary delay jurisprudence on the civil side should be excluded from applying to a regulation issue.

  179. With great respect I am not entirely sure if Geoghegan J. would subscribe to this re-characterisation of his judgment in McCarthy. As explained above, the learned judge when making observations on McNeill was quite specific in reserving for another occasion his view as to whether the relevant parts of the 1989 Regulations were or were not mandatory. Such regulations of course were not in issue in McCarthy - no point in that case was related to or dependent on them. The judge’s reservation is, therefore, not surprising. Moreover, he was at pains to point out that the legislative process in McCarthy related solely to the 1986 Act under which a complaint by the public is necessary, a distinction which he described as constituting “a major difference between the McNeill case and this case”. I respectfully agree with these views.

  180. As seen, the making of a complaint under the 1986 Act is critical; it is at the very heart of the process and is a necessary pre-condition so as to trigger an investigation. The complaint, which must be made by a member of the public, is then, at the behest of the Commissioner, investigated by the Gardaí. One can readily understand judicial concern at an over strict interpretation of the 1986 Act in this regard. As Geoghegan J. said, a “small delay” engineered by the Gardaí, inadvertently or intentionally, could deprive the complainant of having an admissible grievance investigated which was the entire purpose of the Act in question. The 1989 Regulations are entirely different. Their engagement is not complaint dependent; their purpose is to preserve good order and discipline so that public confidence is maintained in the force. There is no question of the Gardaí being able to manipulate the scheme for self gain. The regulations, in my view, as McNeill held, are a self-contained code and must be looked at as such. Therefore, I cannot agree that the judgment in McCarthy can be regarded as having altered the majority view in McNeill.

  181. I do of course accept that Geoghegan J. appears to have some reservations about McNeill, in particular, for present purposes, about the mandatory/directory issue. Whilst Hamilton C.J. did not further elaborate on what should follow a finding that R. 8 had been breached, it nonetheless seems abundantly clear that the order as made was in direct response to a finding that compliance with R. 8 was mandatory. To put the matter another way, the only legal basis upon which he could have concluded, as he did, and issue the injunction as the court did, was that a breach of the regulation could not be excused, i.e. it was not directory in nature but mandatory in effect. I can see no other basis upon which the learned Chief Justice could have made the order which he did.

  182. A declaration “per se”, that the regulation had been breached was not sufficient to dispose of McNeil. The relief sought was to stay the inquiry. Such was done and I firmly believe that the legal justification for so doing was that as described. Whilst O’Flaherty J. did not expressly address this issue, the type of wording used by him, “.... a timetable that accords with the requirements of the regulations would have to lay down a much shorter time span: ideally a matter of weeks or months at most ....”, would suggest that he too shared the same view of the provisions as did the Chief Justice. Moreover, he also allowed the appeal which must be taken as endorsing the relief thus granted.

  183. That such consequences follow from a breach of a statutory provision, which is mandatory and not simply directory, was standard law and known to be such at the time. In The State (Elm Developments Ltd) v An Bord Pleanála [1981] I.L.R.M. 108, Henchy J. said:-

  184. If the requirement has not been observed it may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly mandatory, and will not excuse a departure from it.

    Therefore, it seems reasonable to conclude that the majority of the court had this in mind when granting the relief sought.

  185. Denham J., by reason of her dissenting view, dismissed the appeal and therefore did not have to address the consequences of any alleged breach.

  186. If I was to disregard for a moment McNeill and assume that the issue under discussion is untouched by judicial authority, it would be necessary to determine, as a matter of interpretation, what consequences follow from a breach of R. 8, which is the only regulation in issue in this case. If the regulations had specified such consequences this inquiry would not be required as the results would be obvious, but of course they are not. In this context, I propose to stick with the longstanding and useful distinction between “mandatory” and “directory” requirements of a statute or regulation, despite some recent criticism of this approach as being too rigid. In my view, it remains of value and I use it as traditionally understood, namely, that if a requirement is mandatory (sometimes otherwise described as “strict” or “imperative”), the court will not excuse its non-performance, whereas if directly (something otherwise described as “permissive”), the court will.

  187. In each of the relevant regulations the enactment says that what is enjoined to be done, “shall be” carried out within the descriptive time-frame as mentioned. The word “shall” can only mean “must”, which in turn suggests an intention that the obligation must be carried through. Similar phraseology permeates many of these regulations. Therefore, by the use of such words themselves, it can be said, at least prima facie, that the requirement is mandatory, although this cannot be considered determinative as the search for its true meaning is wider than that. In The State (Elm Developments Limited) v An Bord Pleanála [1981] I.L.R.M. 108, Henchy J., at p. 110 discussed this very issue. The learned judge said:-

  188. Whether a provision in a statute or a statutory instrument, which on the face of its is obligatory (for example, by the use of the word “shall”), should be treated by the courts as truly mandatory or merely directory depends on the statutory scheme as whole and the part played in that scheme by the provision in question. If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, now-compliance may be excused.

  189. By reference to the object of the regulations and the scheme by which such is to be secured, the question therefore is how important a part does R. 8 play in this disciplinary process or regime? Is it a provision of substance or not? Is it of prime importance or purely secondary in effect? Does it play an essential role or one that is merely supportive? Does it have a core function within the overall scheme or not?

  190. In my view there cannot be any doubt as to its central importance. The significance of R. 8 when invoked is that the Commissioner has commenced a process under and by which the conduct of the member concerned is being inquired into. Thereafter his position is altered; he is under investigation which may ultimately have truly significant consequences for him, his career and his family. In addition, this is the process by which good order and discipline is regulated within the force, so that the public at large can have confidence in it. Without the taking of this first step the object and purpose of the regulations cannot be furthered. Whilst there are a number of steps in the process, that first step is key. Therefore, given the pivotal role which the Gardaí play in our society, and indeed which members of society play in supporting the Gardaí, it is critical for all concerned that the mere suggestion of misconduct should be dealt with expeditiously. Clouds of suspicion, mistrust and uncertainty cannot be let gather. Consequently, I am satisfied that the intendment of parliament in creating R. 8 was to make adherence to the timeframe therein specified mandatory, with the consequences that a breach thereof cannot be excused. Accordingly, quite independently of McNeill, I would arrive at the same conclusion as I believe the majority did in that case.

  191. In coming to this view, I should say that such requirement cannot be considered as imposing an onerous burden on the Commissioner or his officers who are involved in implementing the regulations. Nor can the consequences be described as a disproportionate response to a R. 8 breach. The Oireachtas, through the Minister, was careful in his choice of wording when establishing the timeframe in question. The investigation was not required to be carried out “forthwith” or “instantly” or “as soon as possible”, and neither were any of the other steps. The phrases used are less exacting than any of those just mentioned, in respect of which (see Whelton v O’Leary [2010] IESC 63,(Unreported, Supreme Court, McKechnie J. 21st December, 2010)). Such phrases have built within them sufficient flexibility to accommodate the most trying of circumstances provided such are causative in a regulation context. Therefore, any suggestion that the utility of such regulations may be affected by the conclusion as reached in this judgment is one which must be rejected.

  192. In the above circumstances it is not necessary to deal in any detail with the specific prejudice as claimed by Garda Gillen (para. 83 supra). It is sufficient to say that I do not think either claim is made out on the facts.

  193. For the above reasons I would allow the appeal.


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