Judgment
Title: | Keegan -v- Garda Síochana Ombudsman Commission |
Neutral Citation: | [2015] IESC 68 |
Supreme Court Record Number: | 14/13 |
High Court Record Number: | 2011 462 JR |
Date of Delivery: | 07/30/2015 |
Court: | Supreme Court |
Composition of Court: | O'Donnell Donal J., McKechnie J., Clarke J., MacMenamin J., Laffoy J. |
Judgment by: | O'Donnell Donal J. |
Status: | Approved |
Result: | Allow And Set Aside |
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| Judgments by | Link to Judgment | Concurring | O'Donnell Donal J. | | McKechnie J., Clarke J., MacMenamin J., Laffoy J. | |
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THE SUPREME COURT Appeal No. 14/13
O’Donnell J.
McKechnie J.
Clarke J.
MacMenamin J.
Laffoy J.
Andrew Keegan
Applicant/Respondent
And
Garda Síochána Ombudsman Commission
Respondent/Appellant
Judgment of O’Donnell J. delivered on the 30th of July, 2015
1. On the 30th of July 2008, the respondent/appellant, the Garda Síochána Ombudsman Commission (“GSOC or “the Ombudsman Commission”), decided in exercise of its powers under s.102(4) of the Garda Síochána Act 2005 (“the 2005 Act”), that it would be desirable in the public interest to investigate the adequacy of a garda investigation into a road traffic accident which occurred on the 22nd of May 2005, in which a pedestrian, the late Mary Seavers, had been struck and killed by a garda vehicle. The applicant, Sergeant Andrew Keegan, had conducted the investigation. On the 20th of October 2008 he had been notified that a Chief Superintendent had been appointed to conduct an investigation. On the 8th of June 2011 the applicant sought and obtained leave from the High Court (Hedigan J.) to seek judicial review for an order prohibiting the further prosecution of the investigation. Leave was granted on two grounds, retrospectivity and bias, but refused on a third ground related to the interpretation of s.88(1)(c) of the 2005 Act. By a decision of the 1st of May 2012 (Keegan v. An Garda Síochána Ombudsman Commission [2012] IESC 29), the Supreme Court reversed the decision to refuse leave on the third ground. In a judgment of the 17th of August 2012 (Keegan v. An Garda Síochána Ombudsman Commission [2012 IEHC 356), the High Court (Hedigan J.) rejected the first two grounds, but granted an order of prohibition on what might be described as a variation of the third ground which had been added by order of the Supreme Court. GSOC now appeals to this Court from that judgment and order. It will be necessary to address the underlying facts in greater detail later in this judgment. First, however, it is necessary to set out the somewhat complex legislative background by reference to which the legal issue arises.
Legislative Background
2. The Act of 2005 represented a comprehensive statutory reorganisation of the Garda Síochána. Included in that reorganisation was a significantly altered complaint process. Part 3 of the Act provided for the establishment of a new body, GSOC. Section 67 set out objectives, functions and powers of the new body:
“67.— (1) The objectives of the Ombudsman Commission are—
(2) The functions of the Ombudsman Commission are—
(a) to receive complaints made by members of the public concerning the conduct of members of the Garda Síochána,
(b) to carry out the duties and exercise the powers assigned to it under Part 4 in relation to those complaints,
(c) to issue guidelines for the informal resolution under section 90 of certain categories of complaints and to make procedural rules for investigations under section 95,
(d) to report the results of its investigations under Part 4 to the Garda Commissioner and, in appropriate cases, to the Director of Public Prosecutions and, if it reports to the Director, to send him or her a copy of each investigation file,
(e) to conduct, in accordance with section 102, other investigations of matters concerning the conduct of members of the Garda Síochána,
(f) to examine practices, policies and procedures of the Garda Síochána in accordance with section 106,
(g) to draw up with the Garda Commissioner protocols in accordance with section 108, and
(h) to carry out any other duties and exercise any other powers assigned to it under this Act.
(3) The Ombudsman Commission has all powers that are necessary for, or incidental to, the performance of its functions under this Act.
(4) Subject to this Act, the Ombudsman Commission shall be independent in the performance of its functions.
(5) The chairperson of the Ombudsman Commission shall manage and control generally the officers, administration and business of the Commission.”
It may be noted that the section is careful to distinguish between the objectives, functions and powers of GSOC. This case involves a consideration of the objective set out at s.67(1)(a) to ensure that GSOC’s functions are performed in an efficient and effective manner with full fairness to all persons, the functions of GSOC under s.67(2)(a) and (b) to receive complaints made by members of the public, and to carry out duties and exercise powers assigned to it in respect of those complaints, and the function under s.67(2)(e) to conduct in accordance with s.102 other investigations into the conduct of members of the Garda Síochána.
3. Part 4 of the Act is headed “Complaints, Investigations and other Procedures”. It has been amended in a number of respects recently but for the purposes of this case it is necessary to consider only the terms of the 2005 Act in its original form. Section 82 contains definitions of terms used in that part to which it will be necessary to refer as appropriate. Section 83 provides for complaints by members of the public. It states:
“(1) Subject to section 84, a complaint concerning any conduct of a member of the Garda Síochána that is alleged to constitute misbehaviour may be made to the Ombudsman Commission—
(a) by a member of the public who is directly affected by, or who witnesses, the conduct, or
(b) on behalf of that member of the public, by any other person if the member of the public on whose behalf the complaint is being made consents in writing or orally to its being made or is, because of age or a mental or physical condition, incapable of giving consent.”
It might first be noted that complaints are limited to conduct alleged to constitute “misbehaviour”. Misbehaviour in turn is defined in s.82 as conduct that “constitutes an offence or a breach of discipline”. An offence is not defined but is presumably self-explanatory, and means a breach of the criminal law. “Breach of discipline” is however defined as “conduct specified in Schedule 5”. Schedule 5 is headed “Breach of Discipline” and sets out nine different headings and subheadings of conduct which can amount to a breach of discipline, ranging from discourtesy to corrupt or improper practice, or using unnecessary violence, or misuse of money or discreditable conduct. The matters specified can all be said to arise from the interaction between the Gardaí and members of the public. It is significant however that the matters alleged to constitute breach of discipline in respect of which a complaint may be made by a member of the public are specified. It should also be noted that a complaint in relation to such conduct (or the alleged commission of an offence) may only be made by or on behalf of a member of the public who is “directly affected by, or who witnesses, the conduct” (s. 83(1)(a)).
4. It is an important objective of the statute that public confidence in the Garda Síochána should be encouraged by an open and efficient system of processing complaints by members of the public. It is thus important that members of the public have a simple and effective procedure for addressing complaints made by them. However, the legislation also recognises the possibility that such a system may be abused by vexatious complaints or complaints made with the objective of hampering garda investigations. The limitation of the power of complaint to those directly affected by conduct or witnessing it, and in relation to specified matters, can be seen as an attempt to limit the range of complaints to those which are likely to raise genuine concerns on the part of members of the public, and indeed the public generally. Leaving aside the details for the moment, it is nevertheless important to appreciate that the concept of complaint by the public is limited in two important respects: first by the person by whom such complaint may be made, and second by the subject matter of such a complaint.
5. Section 83 is stated to be subject to the following section. Section 84 provides for time limits for the making of complaints and provides that:
Section 87 provides at subsection 1 that:
“(1) On receiving a complaint directly from a complainant or receiving a copy or record of a complaint from the Garda Commissioner or a member of the Garda Síochána, the Ombudsman Commission shall determine whether the complaint is admissible or inadmissible.”
Accordingly this imposes an obligation on GSOC on receipt of a complaint from a member of the public to make a determination as to admissibility. Subsection 2 of s.87 sets out the circumstances in which a complaint may be deemed admissible. That is if:
“(a) the complaint is made by or on behalf of a member of the public authorised under section 83 to make the complaint,
(b) the conduct alleged would, if substantiated, constitute misbehaviour by the member of the Garda Síochána,
(c) the complaint is made within the time allowed under section 84 , and
(d) the complaint is not frivolous or vexatious.”
Subparagraphs (b) and (d) are unremarkable. Subparagraphs (a) and (c) however make it clear that in addition to the subject matter of the complaint being capable of amounting to misbehaviour and being of some substance, a complaint, to be admissible, must be made by a person specified in s.83 and made within the time allowed in s.84, that is either six months, or such time as is extended by the Ombudsman Commission under s.84(2). Section 88 provides the steps that GSOC shall take on a determination of admissibility or inadmissibility. Section 88(2) deals with the circumstances in which the Ombudsman Commission has determined that a complaint is admissible. Section 88(1) is the relevant provision for present purposes. It states:
“On determining under section 87 that a complaint is inadmissible, the Ombudsman Commission shall—
(a) notify, in writing, the complainant, the member of the Garda Síochána whose conduct is the subject of the complaint and the Garda Commissioner of its determination,
(b) include in the notification the reason for the determination, and
(c) take no further action in relation to the complaint.”
The interpretation of s. 88(1)(c) is central to this case. In essence the question for resolution by this Court is whether it means that the Ombudsman Commission may not take any further step in relation to the complainant’s complaint, and that that process of complaint is over, or whether it means that the Ombudsman Commission cannot exercise any other powers of investigation in respect of anything that was the subject matter of a complaint deemed inadmissible. Taken in the abstract, the provisions of s. 88(1)(c) are capable of being read in either way. It is necessary to analyse the Act carefully to decide this question.
6. The procedural provisions relating to complaints are also important in shedding light on the meaning of the Act. Section 90 provides for informal resolution of complaints limited to certain complaints deemed less serious. Section 91 then provides that where a complaint concerns death or serious harm to a person as a result of garda operations or while in the custody or care of the Garda Síochána, GSOC “shall immediately” direct a designated officer to investigate the complaint and report as soon as practicable. It is clear therefore that in respect of such complaints, GSOC is under a mandatory obligation to proceed in the manner contemplated in s.91.
7. In respect of other complaints which are neither sufficiently serious to require the procedure under s.91 nor appropriate for informal resolution under s.90, GSOC may refer the complaint to the Garda Commissioner to be investigated by an appointed member with the possibility of supervision by GSOC, or may conduct an investigation itself or direct a designated officer of the Ombudsman Commission to investigate (s.92). Under s.93 GSOC may discontinue an investigation. Section 94 provides for investigation when the matter is referred to the Garda Commissioner, and s.95 provides for an investigation of the complaint by the Ombudsman Commission itself but where the complaint does not appear to involve an offence, and is thus limited to a breach of discipline specified in schedule 5. There is therefore a very precise delineation of the required procedures depending upon the significance of the subject matter of the investigation.
8. Section 102 is another particularly important provision for the purposes of this case. It provides for investigation by the Ombudsman Commission of matters without receiving a complaint under section 83:
“102.— (1) The Garda Commissioner shall refer to the Ombudsman Commission any matter that appears to the Garda Commissioner to indicate that the conduct of a member of the Garda Síochána may have resulted in the death of, or serious harm to, a person.
(2) The Ombudsman Commission shall ensure that the following matters are investigated:
(a) any matter referred to the Commission under subsection (1);
(b) any matter that appears to the Commission to indicate that the conduct of a member of the Garda Síochána may have resulted in the death of, or serious harm to, a person.
(3) The provisions of this Part relating to investigations and reports apply with the necessary modifications in relation to a matter referred to in subsection (2) of this section as if the matter were the subject of a complaint referred to in section 91.
(4) The Ombudsman Commission may, if it appears to it desirable in the public interest to do so and without receiving a complaint, investigate any matter that appears to it to indicate that a member of the Garda Síochána may have—
(5) The Minister may, if he or she considers it desirable in the public interest to do so, request the Ombudsman Commission to investigate any matter that appears to the Minister to indicate that a member of the Garda Síochána may have done anything referred to in subsection (4), and the Commission shall investigate the matter.
(6) The provisions of this Part relating to investigations and reports apply with the necessary modifications in relation to a matter referred to in subsection (4) or (5) of this section as though that matter were the subject of a complaint other than one referred to in section 91.”
9. A number of things may be noted in respect of this section. It is clear that the Act deliberately imposes certain mandatory obligations on parties depending upon the seriousness of the matter to be investigated. Thus the Garda Commissioner is under a statutory obligation under s.102(1) to refer any matters to GSOC concerning the conduct of a member which may have resulted in the death of, or serious harm to, another person. When such a matter is referred to GSOC, it in turn has no discretion: it must ensure that it is investigated. Similarly, under s.102(2)(b) if GSOC itself becomes aware of a matter indicating that the conduct of a member of the Garda Síochána may have resulted in the death of, or serious harm to, another person, it is under a statutory duty to ensure that it is investigated. By subs. 3, the provisions of s.91 are applied to any such investigation under s.102. Section 91, it may be recalled, deals with the situation when a complaint concerns the death or serious injury to a person as a result of garda operations, or in the custody or care of An Garda Síochána, and GSOC shall immediately direct, in such instances, a designated officer to investigate and report as soon as practicable. It is also noteworthy that the Minister may (and therefore is under no duty to do so) request the Ombudsman Commission to investigate “any matter” if the Minister considers it desirable in the public interest. On its face, this is not limited to anything that may be the subject matter of a complaint by a member of the public. When such a matter is referred by the Minister under s.102(5) the Ombudsman Commission “shall” investigate it. As a result there is a grid upon which GSOC’s powers of investigation can be plotted, depending on the manner of the initiation of the investigation and on the subject matter.
10. It is thus absolutely clear that s.102 investigations are independent of the existence of any complaint. The Act does not create any hierarchy between these two methods by which an investigation may be commenced. They have in common the fact that both the complaint procedure and the investigation procedure, whether as a result of a referral by the Garda Commissioner or the Minister, or commenced by the Ombudsman Commission itself, apply different procedures, and impose different duties, depending on the seriousness of the subject matter of the complaint or investigation.
11. Section 102(4) allows the Ombudsman Commission to investigate a matter without receiving a complaint from a member of the public, and without reference by the Garda Commissioner or the Minister. The power applies differently in different circumstances. Section 102 contemplates a self-starting investigation by the Ombudsman Commission in the case of any matter involving death or serious harm. In such a case the Ombudsman Commission “shall” ensure that the matter is investigated. The Ombudsman Commission may also initiate its own investigation into any matter set out in subs. 102(4) but in that case the Ombudsman Commission has a discretion since it “may” investigate if it appears desirable in the public interest to do so.
12. The matters which the Ombudsman Commission may investigate under s.102(4) are superficially similar to what may be a subject matter of a complaint under s.83. It will be noted however that the Act is carefully drafted, and the differences of language are significant. Thus, s.102(4) does not provide that GSOC may conduct its own investigation into “any conduct of a member of the Garda Síochána that is alleged to constitute misbehaviour”, which is the language used in s.83, and which would have been used if it was intended that the scope of the investigation should be identical. Instead, under s.102(4) GSOC investigates any matter:
The possible commission of an offence is common to both an investigation under s.102(4) and a complaint under s.83 since “misbehaviour” under the latter section includes conduct that constitutes an offence. However, as we have seen part 4 of the Act contains at s.82 its own definition section which defines a “breach of discipline” as meaning conduct specified in schedule 5. By contrast, “disciplinary proceeding”, means “a proceeding conducted in accordance with the Disciplinary Regulations”. Disciplinary regulations are defined in turn by the general definition section in the Act (s.3) as meaning either the existing regulations, or regulations in force under s.123. That section permits the Minister, after consultation with the Garda Commissioner, and with approval of the government, to make regulations concerning the maintenance of discipline within the Garda Síochána, including but not limited to, regulations relating to the matters provided for in subss. 2 to 5. Subsection 2 provides that the regulations may specify acts or omissions that may be subject to disciplinary action under the regulations including, at subpara. (a), a matter specified in schedule 5. However, s.123 extends much further and permits many other matters to be provided for in disciplinary regulations, including failure to comply with a code of ethics, failure to cooperate with an investigation conducted under the Act and other matters which are not specified in schedule 5 and thus cannot be the subject of a complaint by a member of the public, but which are nevertheless matters relating to discipline within the force.
13. Thus it is clear, and perhaps logical, that in addition to an allegation of the commission of an offence, a range of disciplinary matters may be raised by members of the public. Those are however specified in the Act and contained in schedule 5. These matters deal with the interaction of members of An Garda Síochána with members of the public. However, it can be said that discipline within the force extends beyond even those important matters. It is clear that the Ombudsman Commission’s function is not limited to concerns about the conduct of gardaí which may have an effect on members of the public, and extend to the possibility of investigating breaches of discipline which may be purely internal having no direct impact on members of the public, but which conceivably, are no less serious for that.
14. This case involves a consideration only of those portions of the Act involving the investigation and complaints procedure. It is apparent however, from an analysis of those provisions, that the Act is, at least in this respect, very carefully drafted, and makes important and subtle distinctions between the method of commencement of an investigation by or under the supervision of GSOC, depending on the party initiating or seeking to initiate an investigation, and also distinguishes between the procedure to be adopted depending upon the seriousness and nature of the subject matter of an investigation. It is also clear that the Act provides for separate methods for the commencement of investigation whether by public complaint or initiation by the Ombudsman Commission itself or by reference to it. An important part of this case involves the consideration of the interaction, if any, between the complaint procedure and the s.102 investigation procedure. In order to understand how those issues arise, it is now necessary to address the facts of the case in some more detail.
Facts
15. On the 22nd of May 2005, Mary Seavers was standing at a bus stop in Clonskeagh opposite Vergemount Hospital where she had been visiting her ailing husband. A garda car went out of control and collided with the bus shelter and Mrs Seavers was killed. The accident, partly because of its random and tragic nature, and also because a garda vehicle was involved, attracted some public attention. The applicant, Sergeant Keegan, was appointed to conduct an investigation. Papers were submitted to the Director of Public Prosecutions (“DPP”) on the question of whether a criminal prosecution should be commenced. The DPP having considered the file, directed in December 2005 that there should be no prosecution. There was later an inquest at which the Seavers family were represented. It returned a verdict of “death by misadventure”. The inquest attracted some publicity, and in consequence, four new witnesses came forward. Statements were taken from them and forwarded to the DPP who, having considered them, affirmed the original decision not to prosecute.
16. On the 22nd of November 2007, Mr David Seavers, a son of the deceased, made a complaint to GSOC about the nature of the garda investigation into the death of his mother. It was a comprehensive statement of a number of matters which gave concern to Mrs Seavers’ family. It stated that the complaint related to the investigation and attempts by certain gardaí to undermine the investigation. It was contended that this was a “current” complaint as those attempts to undermine the investigation were continuing. It seems likely that Mr Seavers had received legal assistance with the drafting of this complaint and that the reference to a current complaint was an attempt to deal in advance with the fact that the six-month period for the commencement of a complaint had elapsed. The complaint was summarised by the senior investigator in his affidavit as relating to:
“the appropriateness of having colleagues from the same station as the garda driver involved investing the collision; the lack of any real oversight of the investigation; misinformation disseminated by the Garda Press Office; the delay in interviewing both the garda driver and the garda observer; the conduct of the garda liaison officer; the repeated updating of depositions provided by garda witnesses and experts in advance of the inquest; that members of the family were misled about the availability of garda witnesses to attend at the inquest; the doubt introduced by the “independent” experts employed by the gardaí in relation to the maintenance and road worthiness of the patrol car”.
While Mr Seavers did not specifically complain in relation to the failure of the gardaí to take statements from eye witnesses he did refer to the issue of “new evidence” identifying witnesses not interviewed by the initial garda investigation in a letter appended to his complaint which he had previously addressed to the DPP in May 2006. Without expressing any view as to the merits of these complaints, they undoubtedly raise serious matters.
17. It is clear however, that this complaint although characterised as “current”, was well outside the six month period provided for by s.83, and the complaint therefore would be inadmissible unless GSOC exercised its power under s.84 to extend the time for making the complaint.
18. What followed is a little unclear partly at least because the affidavits in evidence in this case were directed towards three identified grounds upon which the decision to commence and proceed with the investigation were challenged. Accordingly, the evidence did not purport to give a full and detailed account of the GSOC decision making process. It is clear however that GSOC did determine that the complaint was inadmissible. In the light of the clear words of s. 83, that was inevitable, unless time was extended. It is not clear however precisely when this decision was made. It should be observed at this point that the trial judge appears to have assumed that it occurred shortly after the complaint was submitted in November 2007. This was perhaps not an unreasonable assumption in the light of the provisions of s.87 which provide that “on receiving a complaint” the Ombudsman Commission “shall” determine whether it is admissible or inadmissible. But there was no evidence that this was in fact the case, and indeed reason to believe that it was not. Obviously, if admissibility is dependent not just on the passage of time, which can be easily calculated, but also on a decision as to extending time, then the s.87 duty cannot be performed until a decision has been made as to the extension of time, which may also involve communications, correspondence, analysis and consideration. It is clearly the case that the Ombudsman Commission is entitled to take a reasonable time for this purpose. The fact is that GSOC did determine that the complaint was inadmissible. It also appears a necessary inference that GSOC did not extend time under s.84, although whether this was the subject of a positive decision not to do so, is also unclear.
19. No criticism of any party is intended by referring to these matters as unclear. They were not relevant to the grounds of challenge raised in these proceedings, at least as initiated. It is the case however that GSOC did not immediately comply with the statutory obligation contained in s.88 that “on determining” that a complaint is inadmissible, which in this case must have occurred no later than the 30th of July 2008, the Ombudsman Commission shall, notify in writing, the complainant, the member of the gardaí concerned, and the Garda Commissioner of the decision. That omission was not remedied until February 2011. Apart from it being a breach of duty imposed by statute for good reason, this omission had unfortunate consequences in creating misunderstanding and suspicion, which was compounded by subsequent correspondence and events.
20. On the 30th of July 2008, GSOC made a determination under s.102(4) that it was desirable in the public interest to investigate the adequacy of the garda investigation into the accident. The Ombudsman Commission made no secret of the fact that it did so because of the information contained in the complaint of Mr Seavers, which was inadmissible. Thus, in a letter of the 15th of February 2011 it was stated: “the determination to initiate a s.102(4) investigation in this case was made having regard to matters raised in the inadmissible complaint of Mr Seavers”. The letter continued:
“The Commission however considered the matters contained in the complaint of Mr Seavers, and after due consideration determined that it would be in the public interest to investigate the adequacy of the garda investigation in the road traffic accident involving the late Mary Seavers and the compilation of the garda report.”
The affidavit of Mr Costello, the senior investigator, sworn on behalf of the Ombudsman Commission also stated:
“Although the Seavers complaint came to the respondent “out of time”, it was decided that the issues raised were of sufficient public interest to warrant an investigation under s.102(4) of the Act.”
In the event, in the course of cross-examination it was made clear that the Ombudsman Commission was not contending that it had any other information to justify the decision under s.102(4) other than that contained in Mr Seavers’ complaint.
21. The investigation was initially commenced pursuant to s.94 of the 2005 Act which provides that it shall be investigated by the gardaí but provides for supervision by GSOC. In the event, it was converted into an investigation being conducted by Mr Costello, the senior investigations officer of GSOC. Nothing turns on this. However, it is of some significance, and led to some of the confusion, that when Sergeant Keegan was notified of the investigation under s.102(4), it was done so in terms which referred to “a complaint by David Seavers”. The notification of the 14th of October 2008 reads as follows:
“Re Garda Síochána Act 2005 – David Seavers.
The above complaint was referred by Assistant Commissioner HRM to this office, pursuant to s.102(4) of the Garda Síochána Act 2005, as the Garda Síochána Ombudsman has considered it desirable in the public interest to investigate the adequacy of the garda investigation into the road traffic collision involving the late Mary Seavers. This complaint has been referred to this office. As one of the members complained of is a superintendent, therefore requires the appointment of the Chief Superintendent to investigate.
I have appointed Chief Superintendent John Manley … Crumlin Garda Station to investigate this complaint in accordance with s.94 of the Garda Síochána Act 2005. The members concerned are [ ] and Andrew Keegan Sergeant … Donnybrook Garda Station.
The allegations are as follows:
It is alleged by “the complainant, David Seavers, that the garda investigation into the road traffic accident involving the late Mary Seavers and the compilation of the garda report to the Director of Public Prosecutions, which investigation culminated in the decision of the Director of Public Prosecutions in September 2007that no prosecution was warranted, was inadequate.
Please have the member notified accordingly.
Signed: Assistant Commissioner.” (emphases added)
22. When the matter proceeded further, on the 19th of February 2010, Sergeant Keegan was notified of an investigation under the heading “Notice of investigation regulation 24 Garda Síochána (Discipline) Regulations 2007”. That informed him that it appeared that he may be in breach of discipline, that a chief superintendent had been appointed to investigate the matter, and that he may seek advice and representation. The breach of discipline set out was as follows:
“(A) The grounds on which it appears that the member may have been in breach of discipline are as follows:
It is alleged by the complainant David Seavers that the garda investigation into the road traffic accident involving the late Mary Seavers and the compilation of the garda report to the director of public prosecutions, which investigation culminated in the decision of the director of public prosecutions in September 2007 that no prosecution was warranted, was inadequate.”
23. Although the name David Seavers was used, and his status as a complainant referred to in correspondence, no issue was raised in relation to this, at least initially, by Sergeant Keegan and his lawyers. However, there was further coverage in the newspapers quoting Mr Seavers and referring to a complaint. That prompted a letter of the 5th of November 2010, in which Sergeant Keegan’s representatives put a number of questions to GSOC in respect of the dates of the complaints, the information provided in November 2007, as indicated in a newspaper article, the decision made, the date of it, and the details of information which the Ombudsman Commission had taken into account in deciding to pursue a s.102(4) investigation. On the 17th of December 2010, Mr Costello replied on behalf of GSOC:
“The Ombudsman Commission does not hold an admissible complaint by a Mr David Seavers into this matter. The investigation to which you refer was approved by the Ombudsman Commission by a memorandum dated the 30th of June 2008 pursuant to the provisions of s.102(4) of the Garda Síochána Act 2005.”
In the light of what we now know this was a surprising response and whether intentional or not, and that was never clarified satisfactorily at the hearing, it was certainly misleading. Furthermore, when the true situation came to light it was bound to increase the level of suspicion on the part of Sergeant Keegan’s lawyers, particularly when it was coupled with the failure to inform the officer and his representatives of the decision on admissibility as required by s.88. Furthermore, the letter of the 17th of December 2010 seemed to wish to distance the s.102(4) investigation from any complaint by David Seavers.
24. This matter was pursued in correspondence by Sergeant Keegan’s solicitors, and on the 15th of February 2011, a full clarifying letter was written by Mr Costello on behalf of GSOC. This letter, while stating that the usual position in inadmissible complaints is that GSOC is prohibited from revealing the identity of the person who made the complaint, continued that given the particular facts and the references in the media to Mr Seavers, and the information contained on the correspondence, GSOC could confirm that he made one complaint in November 2007 which was found to be inadmissible as it was out of time. As already set out, this letter made it clear that the decision to initiate the s.102(4) investigation was made having regard to the matters raised in the, inadmissible, complaint of Mr Seavers after consideration of the matters contained in the complaint. Later it was confirmed explicitly that “the Commission decided to initiate the s.102(4) investigation having considered the contents of Mr Seavers complaint”. The letter also noted that on reviewing the papers it had come to Mr Costello’s attention that he had omitted to inform Sergeant Keegan, as required by s.88, of the existence of the inadmissible complaint from Mr Seavers. Accordingly, a letter was enclosed of the same date notifying him of it and the determination that it was inadmissible “on the grounds that it was not made within the time allowed under s.84 of the Act”. The letter also referred to GSOC’s decision of the 30th of July 2008 to initiate an investigation to pursuant to s.102(4).
Judicial Review Proceedings
25. The two grounds upon which judicial review was sought and granted initially need only be discussed in brief terms here since they are only relevant now insomuch as they cast light on the issue which led the High Court to its determination of this matter and which is the subject matter of this appeal. First, the applicant maintained that since the fatal traffic accident occurred before the coming into force of the 2005 Act, GSOC was not empowered to investigate any matter which predated its establishment. This was a matter which was heavily canvassed in correspondence, and at one stage was the entire focus of the complaint made by Sergeant Keegan’s representatives, but was disposed of comprehensively by the trial judge at paragraph 6.6 of his judgment. No notice to vary or cross-appeal was served in this case, and furthermore no attempt was made to revive this ground of challenge.
26. The second ground upon which leave was sought was an allegation of bias and prejudgment made, not against GSOC itself, but rather against the senior investigator, Mr Costello. This depended in large part upon an assertion made by Mr O’Donnell, the solicitor for Sergeant Keegan, as to the contents of a conversation between him and Mr Costello on the 1st of September 2010 in the car park at Terenure Garda Station. The terms of this conversation were denied by Mr Costello in a replying affidavit. Notices to cross-examine were served, and both deponents were cross-examined in the course of the High Court hearing. In the event, the trial judge rejected this challenge for reasons which are set out at paragraphs 6.7 - 6.10 of this judgment. In the light of those findings, and again the fact that no notice to vary or cross-appeal was served, and no argument advanced in support of this ground, it is not necessary to say anything further about the detail, even though it occupied a large part of the High Court hearing. The only significance of this matter is that the conflict of evidence led to cross-examination which had a tendency to range further than the specific issue of bias, or indeed the other grounds alleged for prohibition, insomuch as they were in any way dependent upon a factual dispute, and touched on matters which formed the subject matter of the trial judge’s decision to grant an order of prohibition in this case.
27. It appears that the trial judge did not accept the jurisdictional challenge. He considered that the Act must be interpreted so that the power of investigation under s.102 must be considered to be separate and distinct from the investigation pursuant to complaint by a member of the public under s.87. However, he did consider that the power of investigation under s.102 must be read subject to the objective contained in s.67 of efficiency, effectiveness and fairness. This meant, he considered, that where GSOC received a complaint it should consider whether it was admissible. That would involve considering if time should be extended, which required a consideration of “all aspects of the case” when it was taken “in the round”. If time was not extended and a complaint deemed inadmissible, then the power of investigation under s.102 could not be properly invoked unless there was “some further significant information” which came to the attention of the Ombudsman Commission. If such further information was not forthcoming, then no further step should be taken.
28. It is to be inferred from this conclusion that the trial judge rejected the applicant’s jurisdictional point, at least in the form in which leave was granted. That point, it will be recalled, was that once a determination had been made that a complaint was inadmissible, then the provisions of s.88(1)(c) meant that no further action could be taken. This was not subject to qualification or amendment, nor could it be. If the interpretation of s.88(1)(c) was correct, then it was irrelevant whether further information came to light. On this interpretation of the Act, GSOC was disabled by statute, rather than by any concept of efficiency, effectiveness and fairness, from investigation. The point was absolute. Indeed part of its force lay in its simple and absolute terms.
29. If indeed the trial judge rejected this argument on behalf of the applicant, he was in my judgment entirely correct to do so. The argument that s.88(1)(c) prevents any further investigation pursuant to the powers set out in s.102 has sufficient superficial appeal to permit leave to be granted to argue the point. But this argument can only be made by focussing on s.88(1)(c) almost to the exclusion of the rest of the Act. But any provision must be read in context. Here, the structure of the 2005 Act is in my view telling.
30. It is clear that the Act considers that the power of investigation after admissible complaint under s.87, and investigation by GSOC itself under s.102, or after reference by the Minister or by the Garda Commissioner, are separate and independent routes to investigation with somewhat different scope and criteria. There is no basis for seeing the public complaint route as somehow primary and the s.102 route as subsidiary. If anything, since the s.102 investigation is potentially of wider scope, and also imposes certain mandatory investigatory obligations, it could be said to be the general power, with public complaint being a special procedure with separate criteria and restrictions.
31. In any event, since any investigation initiated under s.102 is by definition a significant matter, there is no need for a filter of admissibility contained in the Act. On the other hand, a public complaint process is an important component in generating public confidence not just in the process but through it, in a force which members of the public can believe is subject to effective scrutiny. But such public complaints can range from the serious and shocking to matters which are trivial or misguided, and in some cases maliciously initiated. It is thus necessary to have a public complaint process, but to impose some limits on it in terms of the subject matter (only those matters dealing with interaction with the public and raised by the public), content (only admissible complaints), and time (only those commenced within six months or such extended time as is allowed by GSOC).
32. The Act cannot be interpreted as imposing a general limitation of subject matter if the investigation was not initiated within six months of the incident. Indeed, it would make little sense to do so. If this was the case it would gravely undermine the objectives of the Act since the most serious examples of wrongdoing might only come to light after some time. It would be very strange for example if a member of the Garda Síochána could be prosecuted for a serious criminal offence some time after the event, but not investigated as a disciplinary matter. If there is no general time limit on investigation under the Act, and for good reason, it would make little sense to interpret the Act as imposing one in respect only of those matters, which as a matter of chance were perhaps commenced by complaint by a member of the public, and then found inadmissible.
33. When s.87 is read in the context of the Act as a whole, it becomes clear that there are a number of compelling reasons to reject the applicant’s interpretation of s.88(1)(c). It is clear that s.102 imposes certain statutory duties on GSOC. Thus if a garda commissioner refers a matter under s.102(1) or if a matter appears to the Ombudsman Commission to indicate that conduct of and by a member of the gardaí has resulted in death or serious harm, then in either case GSOC shall ensure that the matter is investigated. Similarly if the Minister makes a reference under s. 102(5), the Commissioner “shall investigate the matter”. If the applicant’s argument that s.88(1)(c) imposes a mandatory obligation on the Ombudsman Commission not to proceed further in relation to the subject matter of a complaint ruled inadmissible is correct, there could be potential irreconcilable conflict with these provisions. If the applicant’s argument was accepted, then it would create the possibility of incompatible statutory duties arising. It would be unusual indeed if an Act, particularly one as carefully drafted as this, created such a stalemate by imposing opposed statutory duties on a body, but implausible in the extreme, if it did intend such a potential clash that the Act would not provide a route by which the clash could be resolved.
34. It is to be inferred from the reasoning in the High Court and the arguments made, that it was contemplated that this type of conflict could be avoided by use of the power of extension of time. Thus, if a complaint was prima facie inadmissible as being outside the primary period of six months, GSOC nevertheless could, and arguable should, extend time where it was plain from the subject matter of the complaint that the matter was serious. In this way the potential clash would be avoided since the matter would always be properly investigated. I do not agree that this resolves the problem.
35. I must say that I have considerable doubt that the statutory power of extension of time should be exercised by reference to the subject matter of the complaint and the perception of its seriousness, rather than by reference to the reasons for the failure to comply with the primary time limit. But this route cannot guarantee that the type of clash of provisions will necessarily be avoided. It merely provides a route by which it may, and in doing so requires, a somewhat strained interpretation of the power to extend time. Furthermore, it highlights a further serious flaw in the argument.
36. Admissibility is not limited to the question of whether the complaint was initiated within time. Leaving aside for the moment the concepts of frivolous or vexatious complaints being deemed inadmissible, s.87 also contemplates that a complaint may be inadmissible if it was not made in compliance with s.83, i.e. by a member of the public directly affected by, or who witnessed, the conduct. If s.88(1)(c) is to be interpreted as an absolute bar on investigation of the subject matter of a complaint deemed inadmissible, then the most serious matters could be excluded from any investigation because they were raised by a member of the public not directly affected by, or a witness to, the conduct. On this interpretation, there is no capacity on the part of GSOC to waive that requirement. Indeed, it is not inconceivable that, if s.88(1)(c) is interpreted as suggested by the applicant, a member of the gardaí who considered that he or she might be the subject of investigation, could effectively stymie such investigation by the simple stratagem of having a complaint about the conduct made by a person who did not satisfy the requirements of s.83(1)(a). It is clear that the Act is not only carefully drafted, but also seeks to provide a fully robust system of investigation of garda misbehaviour. It would require compelling reasons to interpret s.88(1)(c) in such as way as to potentially subvert the entire mechanism of investigation.
37. In my judgment there is no reason to so read s.88(1)(c). Indeed, the more natural interpretation of that provision is not to render the conduct the subject matter of an inadmissible complaint immune from further investigation, but rather to bring to an end the person’s complaint. It does not preclude the subject matter of such a complaint becoming the subject matter of an investigation properly commenced pursuant to the powers set out in s.102.
38. The trial judge did not accept the interpretation of s.88(1)(c) advanced on behalf of the applicant. He did however, grant an order of prohibition. This was because he appears to have taken the view that GSOC had ruled the complaint by Mr Seavers inadmissible some time around November 2007, but had then proceeded to use the same raw material, and indeed the contents of Mr Seaver’s complaint as the basis for a decision of the 30th of July 2008 to commence an investigation under s.102(4). Thus at paragraph 3.5 of the judgment he said that the complaint came to the respondent outside the six month time limit “and for that reason was found inadmissible”. This complaint and the respondent’s finding were not notified to the applicant. However, it was decided subsequently by the respondent that it would be desirable in the public interest to “investigate the adequacy of the garda investigation in to the road traffic accident pursuant to s.102(4) of the 2005 Act” (emphasis added). Later at paragraph 6.5 of the judgment, it is said that:
“…it is first of all common case that no further evidence was relied upon when GSOC made the decision in July 2008 to launch the s.102(4) investigation … GSOC’s failure to examine the complaint fully in November 2007 cannot be excused by its failure to notify the applicant. The consideration of the complaint in November was not adequate. If the s. 67 requirement of efficiency, effectiveness and fairness requires that all then known facts on which the complaint is based should be examined to determine whether an investigation should proceed, then that it what should have been done by the Respondent in its first consideration of the complaint in November 2007. Clearly it was not but equally clearly it should have been. In the admitted absence of any further information that arose after such a decision under s.87, it seems to me there is no jurisdiction to conduct an inquiry in relation to the exact same facts.” (emphases added)
39. There can be little doubt that if it appeared that GSOC had properly ruled a complaint to be inadmissible, but then and some time later, sought to use the s.102 power of investigation to simply revive the complaint, perhaps in circumstances where the individual garda had already been informed that the complaint had been dismissed, this would be a matter which might require careful scrutiny. But there are a number of fundamental reasons why and with respect, the reasoning and decision of the trial judge cannot be supported.
40. First, the ground upon which he decided the case was simply not pleaded. The only issue before this Court in this regard was the ground added by order of the Supreme Court of the 1st of May 2012, namely:
“The respondent having determined pursuant to s.87 of the Act of 2005 that the complaint of David Seavers was inadmissible, has no jurisdiction by virtue of s.88 of the Act to taken any further action against the appellant.” (para. 10)
It is apparent, that this is entirely an issue of law: it depends upon the true interpretation of s.88(1)(c). It is as held in A.P. v. Director of Public Prosecutions [2011] 1 I.R. 729 (“A.P. v. DPP”), that, in the words of Murray C.J.:
“It is incumbent on the parties to judicial review to assist the High Court, and consequentially this court on appeal, by ensuring that grounds for judicial review are stated clearly and precisely and that any additional grounds, subsequent to leave being granted, are raised only after an appropriate order has been applied for and obtained.” (para. 10)
41. The ground upon which the High Court decided this case was not pleaded, and does not appear to have been argued. It might of course be said that it is not very distant from the point upon which leave was granted. Instead of s.88(1)(c) posing an absolute bar to further investigation under s.102, it may be said that on the High Court’s approach, s.67 imposes a discretionary bar on further investigation under s.102 after a ruling of the inadmissibility under s.88. However, it is a logically distinct point. Whereas the ground of appeal was entirely a matter of law, this one is one which mixes law and fact.
42. It is not merely a procedural complaint that the ground upon which the case was decided was not one upon which leave was sought or indeed granted nor was there an appropriate amendment. The purpose of pleadings is to define the issues between the parties, so that each party should know what matters are in issue so as to marshal their evidence on it, and so that the Court may limit evidence to matters which are only relevant to those issues between the parties, and so discovery and other intrusive interlocutory procedures limited to those matters truly in issue between the parties. This is particularly important in judicial review, which is a powerful weapon of review of administrative action. But administrative action is intended to be taken in the public interest, and the commencement of judicial review proceedings may have a chilling effect on that activity, until the issue is resolved one way or another. Because of the impact of such proceedings, it is necessary to obtain leave of the court before commencing proceedings. It is important therefore that the precise issues in respect of which leave is obtained should be known with clarity from the outset. This also contributes to efficiency so that judicial review is a speedy remedy.
43. Again, this case illustrates the practical importance of the observations of this Court in A.P. v. DPP. In judicial review proceedings the grounds upon which leave is granted ought to define the evidence which it is necessary to adduce on either side. Here the ground advanced was a matter of law. It was simply a question of statutory interpretation of s.88 in the context of the Act as a whole. This ground therefore did not require any evidence other than the facts that the complaint had been made which was ruled inadmissible, and an investigation was commenced under s.102 which was ongoing. It is therefore not surprising that the evidence given in relation to the decision making process of GSOC, was limited, and furthermore not directed to GSOC. Thus, and at the very minimum, as counsel pointed out, while the High Court may have assumed that there were two decisions, one in November 2007 and the other in July 2008, there simply was no evidence to support that assumption, upon which the entire legal analysis was based. It was entirely possible, to put it at its lowest, that GSOC had not made two decisions separated in time, but rather one decision to rule Mr Seaver’s complaint inadmissible, and by inference refusing to extend the time, and another to commence an investigation under s.102. It would be not at all surprising if GSOC had to consider the admissibility of the complaint which in effect required a consideration of the question of whether or not it was proper to extend the time for the making of a complaint. That in turn might involve further investigation and communication.
44. If GSOC had taken the view that the power of extension of time could only be invoked for reasons relevant to the delay in making the complaint, and not because of the importance or significance of the events, and at a minimum this would be at least a plausible interpretation of the power of extension of time, then a decision to rule that Mr Seaver’s complaint was inadmissible, but at the same time to commence an investigation under s.102, would be a perfectly sensible response to the matters raised by Mr Seavers. Indeed, the judgment in the High Court appears to contemplate that the same result could have been achieved by an extension of time, i.e., that GSOC could consider the significant importance of the complaint as a reason to extend the time, in which case a valid investigation would have been commenced. Accordingly, the related objections to this ground are not only (1) that it was not pleaded, and (2) that evidence was accordingly not before the Court permitting it to reach any conclusion on this issue, but furthermore (3) that the assumptions made by the Court as to the facts cannot be assumed to be correct. Counsel also points out that during the course of the cross-examination a number of objections were made which resulted in the trial judge ruling that the only issue on this ground was whether s.88 barred any further investigation, and which did not itself give rise to any evidential issue. The approach of the judgment is inconsistent with the rulings made in the course of the hearing. These objections are, in my judgment, well made.
45. Finally, and in any event, I do not consider that the interpretation in the High Court Judgment can be supported as a matter of law. Section 67 creates objectives for GSOC. It also creates both duties and powers. The significance of the identification of effectiveness, efficiency and fairness as an objective, is arguably precisely because that are not to become legally enforceable requirements. It may be a matter of the most severe criticism of GSOC if it does not act in an efficient or effective way, which might be a matter for which it would have to answer to both the Oireachtas and the executive branch, but it would not, in itself, undermine the legality of an investigation commenced, even ineffectively or inefficiently. I do not think that it was intended that the validity of GSOC’s actions could be reviewed by the Court against such ephemeral standards as effectiveness and efficiency, and moreover further action restrained on those grounds. None of this should be read as meaning that investigations carried out by GSOC should not be fair: that is not just simply an objective required by s.67, but follows from the fundamental concepts of constitutional justice, and indeed statutory interpretation. The decision to commence investigation is reviewable as the exercise of public law power, and thus subject to judicial review. Thus, if GSOC commenced a s.102 investigation for improper purposes, it would be reviewable on those grounds. Similarly, if the decision was made having regard to irrelevant considerations, or in failing to have regard to considerations which were relevant, it would be reviewable. In any case where such a decision came some time after a prior decision rejecting as inadmissible a complaint by a member of the public, that fact might be a matter which could give rise to scrutiny. However, these issues do not arise either as a matter of law or fact in these proceedings. There are a number of fundamental objections in law, evidence and procedure to the course adopted in the High Court. Accordingly the respondent’s appeal must be allowed and the order of the High Court set aside.