High Court: Garda fails to quash suspension following allegations of drunk driving

About this case:

• Citation:
  [2023] IEHC 300
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Rory Mulcahy

Delivering judgment in the case, Mr Justice Rory Mulcahy held that the main issue in the case was whether the Commissioner had provided adequate reasons for the suspension. The court held that the garda had been furnished with certain information after he instituted the proceedings which explained the reasoning of the decision and these reasons were adequate.

Background

The applicant was a sergeant based in Store Street Garda Station. In November 2022, he was arrested and charged after allegedly being found to be drunk in charge of a vehicle. He was not on duty at the time. A breath sample allegedly returned a blood/alcohol reading which was nearly four times over the legal limit.

Following the incident, an Inspector was appointed to investigate the matter pursuant to the Garda Síochana (Discipline) Regulations 2007. The guidelines for the suspension of members outlined that the views of the Divisional Officer would be sought and, further, set out primary and secondary matters for consideration.

In December 2022, the applicant’s Divisional Officer (a Chief Superintendent) prepared a report in which he did not recommend the suspension of the applicant. The DO cited the negative impact on the applicant and morale generally. A week later, the Chief Superintendent for Internal Affairs wrote to the Assistant Commissioner and stated that she agreed that no suspension was warranted at the time.

On 12 December 2022, Assistant Commissioner Jonathan Roberts determined that it was appropriate to suspend the member. It was said that the alleged offence was very serious, particularly in a context of the role that the gardaí played in protecting lives on the road. If proven, the applicant’s irresponsibility and reckless behaviour could have resulted in a very serious collision, Mr Roberts said.

As a result, the applicant was served with a notice of suspension, where he was suspended from duty until 1 February 2023. At the time, the applicant was not provided with the reports from the Chief Superintendents.

Subsequently, correspondence was exchanged between the applicant’s solicitor and the Commissioner. On 16 January 2023, the applicant applied for judicial review challenging the decision to suspend him.

The respondent proceeded to file a Notice of Opposition in February 2023, which included the reports of the Chief Superintendents. Following receipt of this documentation, the applicant amended his Statement of Grounds to include a claim that the Commissioner failed to provide reasons for the decision to suspend him.

The matter proceeded by way of telescoped hearing, where the leave application and substantive proceedings were heard together. The applicant submitted that the Commissioner was confined to relying on the reasons given when he first notified the applicant about the suspension. As such, it was said that the Commissioner could not rely on the internal reports that were not conveyed at the time.

It was also claimed that the Assistant Commissioner failed to give reasons for suspending the applicant notwithstanding the recommendations of the Chief Superintendents.

High Court

Mr Justice Mulcahy began by outlining the relevant case law and legislative framework. It was noted that the suspension policy contained primary and secondary considerations. Primary considerations included inter alia the strength of the evidence, the seriousness of the allegation and the risk to members of the public.

The court also considered the well-established case law relating to the duty to give reasons (see Connelly v An Bord Pleanála [2018] IESC 31; Mallak v Minister for Justice, Equality and Law Reform [2012] IESC 59; McEnery v Commissioner of An Garda Siochána [2016] IESC 66).

The court outlined that the original grounds of challenge were not pursued by the applicant. As such, the primary issue was whether adequate reasons had been provided by the Assistant Commissioner.

Considering the nature of the decision, the court noted that the debate at hearing centred on whether the suspension was a “holding suspension” or a “long-term suspension” which attracted different considerations for fair procedures. However, the court stated that the labels used were unhelpful. It was said that “the extent of fair procedures which must attend any decision to suspend falls along a spectrum depending on the circumstances”.

Relevant considerations included inter alia a suspension being open-ended, whether suspension included pay and whether it was intended to be punitive. Further, while the suspension policy did not have statutory force, it would generally be necessary to follow the steps contained therein for fair procedures.

The court did not accept that the balance of justice had tipped in favour of requiring the Commissioner to provide reasons to justified a “long-term suspension”. It was held that the present case was not analogous to Canavan v Commissioner of An Garda Siochána [2016] IEHC 225.

In Canavan, the applicant was suspended for two years in three-month suspensions without reasons. In the present case, the applicant was suspended for five weeks and renewed in February and May 2023. Equally, the applicant had agreed that the disciplinary proceedings could be held in abeyance pending the determination of the criminal proceedings.

In these circumstances, there was no heightened obligation in respect of procedural fairness, the court held.

The court then considered the actual reasons offered for the suspension. It was held that different considerations applied to reasons advanced for the first time in judicial reviews and to reasons which were documented and pre-dating the decision. In the latter case, it would be difficult for a court to disregard these reasons.

Finally, the court determined that the reasons provided in this case were adequate. The applicant was in no doubt as to why he had been suspended and did not query the reasons for the decision at the time. Similarly, he did not challenge the adequacy of reasons in the originally instituted proceedings.

The applicant was aware of the circumstances of his arrest and that he had been charged with a criminal offence. While he was entitled to the presumption of innocence, it could not be seriously contended that the notice of suspension was inadequate in outlining that the charges rendered his suspension desirable.

Further, the court held that the Commissioner had actually provided reasons for not agreeing with the Chief Superintendents’ views. The Assistant Commissioner had clear regard to the reports, references the primary/secondary considerations and disagreed with the advice.

It was clear that the Assistant Commissioner felt that the seriousness of the offence outweighed the factors which supported no suspension, the court said.

Conclusion

It was held that it would have been desirable for the respondent to have communicated more effectively with the applicant in the case, particularly as it related to the commencement of the investigation.

However, adequate reasons were provided by the respondent. As such, the applicant was not successful in the application for judicial review.

Brannock v. The Commissioner of An Garda Síochána [2023] IEHC 300