The Supreme Court allowed a garda sergeant to add a legal ground to his judicial review challenge to an investigation by the Garda Síochána Ombudsman Commission. The Court decided only that he could amend his case; it did not rule on whether the Commission had jurisdiction to investigate him.
The judicial review seeks to prohibit or restrain an investigation into the adequacy of the Garda inquiry into a fatal road traffic collision. The collision happened on Clonskeagh Road, Dublin, on 22 May 2005, when a garda patrol car struck pedestrian Mary Seavers. The sergeant had been responsible for the subsequent Garda investigation. The Director of Public Prosecutions directed that there be no prosecution, a decision repeated after review in September 2007.
The Commission later decided to investigate under section 102(4) of the Garda Síochána Act 2005, which allows it to investigate matters it considers in the public interest without receiving a complaint. David Seavers had made a complaint about the adequacy of the Garda investigation on 19 November 2007. The Commission ruled the complaint inadmissible as out of time, but said its decision to begin a section 102(4) investigation had taken account of matters raised in that complaint.
The sergeant’s proposed new ground is that, having ruled the complaint inadmissible, the Commission was barred by section 88(1)(c) from taking further action in relation to it and therefore lacked jurisdiction to start the investigation. The Commission did not dispute that the point was arguable. The Supreme Court expressly declined to comment on its merits.
The High Court had refused permission to add the ground, partly because the relevant facts were already known. The Supreme Court said amendments after leave to seek judicial review should be approached cautiously, and an applicant must explain the delay and why the ground was omitted. But newly discovered facts are not an essential precondition to an amendment. A lawyers’ oversight may provide a sufficient explanation depending on the circumstances.
The Court noted that the sergeant’s lawyers knew by February 2011 that the complaint had been ruled out of time, but the proposed ground was not included when leave was granted in June 2011. It nevertheless found that the Commission had not told the sergeant the complaint’s date or inadmissibility ruling until February 2011, more than three years after the complaint was made. The proposed ground raised a pure question of law, did not change the relief sought and would cause no significant prejudice to the Commission.
The Supreme Court concluded that the balance of justice favoured allowing the amendment. The underlying judicial review, including the question of the Commission’s jurisdiction, remained to be determined.