The High Court has refused a Garda sergeant’s application to quash the Garda Síochána Ombudsman Commission’s decision to extend the time limit for investigating a complaint against him.
In a judgment delivered on 9 June 2011, Mr Justice Hedigan found that the Commission’s decision was factually sustainable and rational. He also held that it was not required to invite the sergeant to make submissions before allowing the complaint to proceed to investigation. The court refused all relief sought.
Josie Kelly complained to the Commission on 19 February 2010, alleging harassment by Sergeant Oliver Moran. The alleged conduct included incidents between 2003 and 2007. Kelly also alleged that he had been assaulted by Garda members in June and August 2009, but did not name Moran as one of those responsible. Kelly had been acquitted in 2003 of a rape charge involving a girl whose family, he alleged, was associated with Moran.
The statutory time limit for complaints was six months from the conduct complained of, unless the Commission found good reasons to extend it. The Commission deemed the complaint admissible on 22 February 2010. It later explained that it had extended time because the alleged pattern might amount to harassment, with individual events forming a continuing course of conduct. The sergeant argued that the Commission had not properly considered the delay or possible prejudice to him, and should have sought his submissions before making its decision.
The judge said the Act gave the Commission wide latitude to decide whether good reasons existed. The court could review that decision but could not replace the Commission’s assessment with its own. The complaint described a series of incidents which, if upheld in an investigation, could amount to harassment. The Commission’s concern that the incidents might form a continuum was rational, the judge found, and the sergeant had not shown that the decision was made in bad faith, was factually unsustainable or was irrational.
The court distinguished the case from an earlier decision concerning a preliminary finding that a professional inquiry should be held. Here, the decision was only whether to begin an investigation. The judge said fair procedures would apply during the investigation and at any later stage when findings were considered. The Commission was therefore not obliged to invite submissions on extending time before starting the investigation.
The judge also rejected the challenge to the reasons given. He found the Commission’s initial explanation clear and its later affidavit explanation sufficient. The ruling concerned the decision to extend time and permit an investigation; it did not determine whether the allegations were true.