High Court: Order for costs against Garda Ombudsman Commission quashed

About this case:

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In the High Court, Ms Justice O’Regan found that GSOC was not a party to the proceedings in the District Court, as it was clear that all decisions made regarding the prosecution of the respondents in the trial were made by the Director of Public Prosecutions.

Background

Maeve O’Brien and Fintan O’Brien were involved in a road traffic incident in June 2011, which involved an off-duty member of An Garda Siochána.

In January 2013, the O’Brien’s made a complaint to GSOC against a member An Garda Siochána; based upon an attendance note taken by their solicitors and forwarded to An Garda Siochana Ombudsman Commission (GSOC).

GSOC deemed the complaint admissible; and on the 2nd May, 2013, Maeve O’Brien was interviewed by GSOC. An amended attendance dated the 28th February 2013 was furnished wherein the facts contained differed in a number of respects over the facts contained in the initial attendance note furnished to GSOC.

Section 110 of the Garda Siochána Act 2005 provides that it is an offence to give false and misleading information to GSOC

An investigation ensued by GSOC as to a possible offence contrary to s. 110, and a file was referred to the Director of Public Prosecutions for consideration. A direction issued from the DPP’s office that the O’Brien’s be charged with an offence of providing false and misleading information contrary to s. 110 of the Garda Siochána Act 2005.

District Court

In Sligo District Court, on the instructions of the office of the DPP, a nolle prosequi was entered; and the O’Brien’s applied for costs.

On the application of the DPP, the matter was re-entered in October 2015, where it was indicated that an order for costs could not be made as against the DPP.

The District Judge directed that the order for costs should be against GSOC. In November 2015, GSOC made representations vis-à-vis the order for costs; however the District Judge affirmed the order for costs made as against GSOC.

High Court

In the High Court, GSOC sought an order by way of application for judicial review quashing part of the determination at Sligo District Court insofar as that order provides for an order of costs in favour of the Maeve O’Brien and Fintan O’Brien.

GSOC sought a further order extending time within which it might maintain the within application pursuant to O. 84 r. 21 of the Rules of the Superior Court.

The legal issues arising were:

GSOC relied on Southern Hotel Sligo Limited v. Iarnrod Eireann IEHC 254, and DPP v. Sean Douglas IEHC 461; and argued that it was not a party to the proceedings and therefore not amenable to an order for costs, as:

Countering argument 6, the O’Brien’s argued that a statutory provision was not in fact required.

Finding that GSOC were not a party to the District Court proceedings, Justice O’Regan said it was ‘clear that the decision-making process vis-à-vis the institution and effective ultimate abandonment of the criminal proceedings was made by the DPP and that for the purposes of processing the prosecution it was the DPP’s personnel who were present’ albeit they did avail of evidence from GSOC together with the witness statements secured by GSOC in or about the prior investigation. As such, Justice O’Regan said she was satisfied that it was the DPP and not GSOC that was the relevant prosecutor and relevant party to the proceedings.

Justice O’Regan made an order extending time within which the judicial review proceedings might be maintained by GSOC, and an order quashing the decision of the District Court insofar as it purported to award costs to the O’Brien’s to be paid by GSOC.