About this case:

• Citation:
  [2025] IESC 36
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Brian Murray

Delivering the lead judgment for the Supreme Court, Mr Justice Brian Murray opined: “Section 14(2), it must be stressed, confers an extreme power to be resorted to only in the wholly exceptional situation in which the conduct of a member is such that their continued membership of the force would undermine public confidence in An Garda Síochána and the dismissal of that person is ‘necessary to maintain that confidence’.”

Background

A complaint was made against the applicant to the effect that on 15 March 2017, the applicant engaged in a sexual act with the complainant while on duty at Lismore Garda Station and during the course of taking a statement of evidence from her in relation to the arrest of her sister.

A disciplinary process pursuant to Part 3 of the Garda Síochána (Discipline) Regulations 2007 commenced and a Board of Enquiry was established.

The breaches of discipline alleged against the applicant consisted of an allegation of discreditable conduct, and of neglect of duty in that he failed to record a statement of evidence from the complainant relating to her sister’s arrest.

The Board recommended that the applicant be require to retire or resign as an alternative to dismissal in respect of the first breach, and that he be subjected to two weeks’ deduction in pay in respect of the second breach.

In October 2018, the Commissioner issued a decision requiring the applicant to resign on or before midnight on 16 November 2018 and deducting two weeks’ pay. The applicant appealed, with the Appeal Board finding that the penalty imposed in respect of the first breach was disproportionate and substituting a four-week deduction in pay.

The decision was not implemented notwithstanding that the Commissioner was obliged to do so within seven days pursuant to regulation 37(5) of the 2007 Regulations. Instead, the applicant was notified that he was suspended pending consideration of his position by the Commissioner pursuant to s.14 of the Garda Síochána Act 2005.

On 31 March 2020, the Commissioner wrote to the applicant stating that as a result of his sexual conduct, his dismissal pursuant to s.14 of the 2005 Act was necessary to maintain public confidence. 

The applicant’s solicitor made representations to the Commissioner to the effect that his decision subverted the Appeal Board’s decision and as the Commissioner was obliged to comply with that decision, the invocation of s.14 of the 2005 Act was unlawful.

The High Court and Court of Appeal

The applicant brought judicial review proceedings which contended inter alia that it was impermissible for the Commissioner to invoke s. 14(2) of the 2005 Act in respect of an action which gave rise to a completed disciplinary process under the 2007 Regulations.

The High Court found that the applicant, having ultimately suffered the penalty imposed by the Appeal Board, was being subjected to a second process for the same conduct where there was no change in the underlying facts and circumstances, and quashed the Commissioner’s decision for fundamental unfairness. 

The Court of Appeal dismissed the Commissioner’s appeal against the High Court’s decision.

Issues on appeal

Leave to appeal to the Supreme Court was granted to the Commissioner on the following issues:

• How does the power to dismiss members of An Garda Síochána under s.14(2) of the 2005 Act operate alongside the 2007 Regulations?

• May the Commissioner overrule or not follow the recommendations of a Board of Inquiry or an Appeal Board when exercising his powers under s.14 and if so, in what circumstances?

• Before s.14(2) is used, must there always be a process whereby facts are found and whereby a recommendation is made either under the Regulations or otherwise?

• If s.14(2) may be used by the Commissioner through not following a recommendation of a Board of Inquiry or an Appeal Board, are normal judicial review principles, including a discretion to refuse relief, applicable?

The Supreme Court

As to the first issue, Mr Justice Brian Murray considered that the power provided for in s.14(2) is distinct from the disciplinary process in the 2007 Regulations by virtue of the stipulation “notwithstanding anything in this Act or the Regulations”.

The judge observed that while both processes aim to ensure public confidence in Gardaí, the Regulations envisage a disciplinary power whereas s.14(2) is a protective provision to which resort may only be had “in the most unusual and extreme of circumstances”.

Finding that the Commissioner is required to take a view that the dismissal of the applicant is necessary to maintain public confidence in An Garda Síochána, and that the threshold is higher in the case of low-ranking gardaí, Mr Justice Murray warned that it would be not be enough that a section of the public would be temporarily incensed by a particular event or that the conduct of the applicant was wrongful or even disgraceful.

The court confirmed that due to the truly exceptional nature of the power conferred by s.14(2), “it cannot be said that the invocation of the disciplinary procedure provided under the Regulations precludes the operation of s. 14(2).”

On the second issue, the court found that because s.14(2) and the Regulations are distinct provisions with different, if overlapping, objectives, it followed that the findings of a Board of Inquiry or Appeal Board do not and cannot preclude the Commissioner from exercising the distinct statutory power conferred by s. 14(2) provided that the conditions prescribed by that provision are otherwise met.

Turning to the third issue, Mr Justice Murray pointed out that the applicant had accepted the allegations against him before the Board of Inquiry and determined that once there are no factual issues to be resolved, the summary process envisaged in s.14(2) can be properly resorted to and that there was no requirement that a recommendation be made under the Regulations prior to utilising s.14(2).

In this regard, the judge observed that “the very fact that the Commissioner may invoke s. 14(2) where the procedure under the Regulations has commenced, strongly militates against the case advanced by the Applicant here that the Commissioner loses the right to invoke it when that process has concluded.”

As to the final issue, Mr Justice Murray confirmed that decisions under s.14(2) are amenable to judicial review and that the principles by reference to which such a decision may be impugned are “well-established, and in no sense particular to the exercise of the Commissioner’s power.” 

In particular, the judge highlighted: “The Commissioner does not obtain any more deference in invoking the provision than any other administrative decision maker; this is not an area of technical specialisation to which principles of curial deference apply.”

The court also confirmed that the discretion to withhold a remedy by way of judicial review is determined in accordance with general law and those principles required no modification or supplement when applied to decisions made under s.41(2).

Conclusion

Accordingly, the Supreme Court allowed the appeal and refused the relief sought by the applicant.

Raymond Hegarty v The Commissioner of An Garda Síochána [2025] IESC 36