About this case:

• Citation:
  [2025] IEHC 303
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Mr Justice Garrett Simons found inter alia that while the procedure proposed to be adopted by the respondent Commissioner could be regarded as “unusual”, it was not one that could be said to be inherently unfair and the applicant had, in any event, prematurely applied for judicial review.

Background

The respondent alleged that the applicant garda entered into an inappropriate sexual relationship with a woman — the complainant — who made a complaint of assault by her then partner to An Garda Síochána, and had been in contact with and had attempted to assist the complainant’s former partner in relation to family law proceedings.

In March 2021, the applicant was suspended pending the outcome of a disciplinary process commenced by the respondent as against the applicant pursuant to the Garda Síochána (Discipline) Regulations 2007, on the basis inter alia that the applicant had breached his duty of care toward a “vulnerable victim of crime”. The respondent established a Board of Inquiry for this purpose on 4 May 2023.

The applicant made a number of objections at the substantive disciplinary hearing on 20 November 2023, with the result that same was adjourned to facilitate an application on his part for leave to bring judicial review proceedings.

Grounds of challenge

The applicant’s first ground of challenge alleged that the respondent’s most recent decision to continue his suspension was unlawful.

In particular, the applicant alleged that he was belatedly notified of a significant change of circumstances (being a decision not to pursue a criminal prosecution in respect of the complaint of assault by the complainant against her then partner) and should have been invited to make submissions at the three-monthly review of his suspension, in circumstances where the woman could no longer be described as a “vulnerable victim of a crime” and where he alleged that this reduced the seriousness of the alleged breach of discipline.

The appellant also complained in relation to the overall period of suspension, alleging that same was unlawful and excessive.

Secondly, the applicant challenged the procedure proposed to be adopted by the Board of Inquiry, where the hearing was to commence with the presenting officer reading a series of witness statements into the record without oral testimony from the relevant witness.

Thirdly, the applicant complained that the existence of a witness statement dated 22 April 2021 made by the complainant was not disclosed to him until the hearing before the Board of Inquiry.

The High Court

Having set out the relevant jurisprudence, Mr Justice Simons stated: “With respect, the decision not to prosecute does not materially affect any assessment of the seriousness of the alleged breach of discipline.”

The court found that it was apparent from the wording of the particulars of the alleged breach that the concern was that such a complainant should be treated as vulnerable by gardaí and that the decision not to prosecute did not necessarily remove “the sting” from the alleged breach of discipline where it could not be automatically inferred therefrom that the complainant was not vulnerable.

Mr Justice Simons was satisfied that the belated disclosure of the decision not to pursue a criminal prosecution did not represent a significant change in circumstances such as to trigger a requirement to notify the applicant and to invite submissions.

The judge was also satisfied that each three-monthly decision to renew the applicant’s suspension were reasonable and rational having regard to the seriousness of the allegations as against him, where it was open to the respondent to form the view that a renewal of the applicant’s suspension was “desirable in the interests of the Garda Síochána” within the meaning of the 2007 Regulations and that the applicant had been provided with an adequate explanation of the reasons for his suspension.

Finding that the applicant had been suspended for a significant period, Mr Justice Simons considered that the length of the suspension had “to be seen in the context of the progression of the disciplinary process” and it was apparent from correspondence dated April and May 2022 that the applicant did not object to the deferral of the disciplinary process pending the outcome of the criminal investigations.

Turning to the applicant’s second ground of challenge, the court noted that a “striking feature of the present case is that the applicant has moved for judicial review prior to the conclusion of the disciplinary process” and in those circumstances, the court was required to consider whether the application for judicial review was premature.

Explaining that there is a reluctance on part of the courts to interfere “too readily” in an ongoing disciplinary process as outlined in Rowland v. An Post [2017] IESC 20, [2017] 1 IR 355, Mr Justice Simons highlighted that the court should only intervene in such circumstances where “it is clear that the process has gone irretrievably wrong and that it is more or less inevitable that any adverse conclusion reached at the end of the process would be bound to be unsustainable in law”.

The High Court found that the applicant’s case did not meet this threshold, pointing out that the logic of the applicant’s objection to the Board of Inquiry’s procedure seemed to be that it was impermissible to adduce written statements in circumstances where a witness was available to give oral testimony.

Emphasising that this was not correct as a matter of law, Mr Justice Simons observed that even in the context of an oral hearing it is, in principle, permissible to lead evidence of the making of a previous statement by a witness and that there was “no ‘bright line’ rule which precludes a Board of Inquiry from ever admitting witness statements. Rather, the touchstone against which the procedures of a Board of Inquiry must be assessed is whether proper regard has been had to ‘the right of the member concerned to challenge and test the evidence of any person’ (regulation 29(7)).”

In this regard, the judge determined: “It is simply not possible to know at this remove whether the proposed procedure would have breached this requirement.”

Turning to the applicant’s challenge in relation to the alleged non-disclosure of a statement of the complainant dated April 2021, Mr Justice Simons found that the applicant’s related complaints to the effect that the respondent acted without a bona fide belief that the applicant committed a breach of the 2007 Regulations, acted ultra vires and in breach of natural and constitutional justice in persisting with the investigation and displayed bias against the applicant were not well founded.

The judge opined that those pleas mistakenly sought to assimilate a criminal prosecution with disciplinary proceedings, noting: “It is not a necessary precondition to the legitimate pursuit of disciplinary proceedings that the impugned conduct must also constitute a criminal offence.”

The court considered that there is a public interest in ensuring that members of An Garda Síochána are held to a high ethical standard and that a Garda may be disciplined and dismissed notwithstanding that there is no criminal offence.

The court also pointed out that the decision on whether to pursue a criminal prosecution is ordinarily a matter for the prosecuting authorities and that the views of the alleged victim are not necessarily determinative, with the result that the complainant’s statement of April 2021 “does not have the seismic importance which the applicant seeks to attach to it”.

Finally, the court considered that any challenge in relation to the decision to commence and to continue the disciplinary investigation was out of time where those decisions were taken before the three month time-limit for instituting judicial review proceedings under Order 84 of the Rules of the Superior Courts.

Conclusion

Accordingly, the High Court determined that the applicant’s application for judicial review must be dismissed in its entirety. 

Harrison v Commissioner of An Garda Síochána [2025] IEHC 303