The Court of Appeal has allowed the Commissioner of An Garda Síochána’s appeal against a High Court order quashing a notice proposing to dispense with Thomas Murphy’s services as a probationary Garda.
The court held that Murphy’s judicial review challenge was premature because the statutory suitability process was still at an early stage and had not gone irremediably wrong. It also set aside the High Court’s finding that serving the notice violated his presumption of innocence. The Court of Appeal did not decide whether the Commissioner might have to pause a suitability process in a future case where a real risk to criminal proceedings is established.
The Commissioner sent Murphy the proposal notice on 17 December 2019 under Regulation 12 of the Garda Síochána (Admissions and Appointments) Regulations 2013. At the time, criminal proceedings concerning allegations of driving while intoxicated and intoxication in a public place were pending. The notice described alleged incidents on New Year’s Day 2019 and invited submissions within 28 days. The Court of Appeal noted that the parties agreed Regulation 12 concerns a probationer’s suitability for service, rather than providing a disciplinary mechanism.
Murphy’s solicitors wrote on 8 January 2020 seeking documents the Commissioner intended to rely on, more time to respond and confirmation that no further steps would be taken until the criminal case was resolved. The Commissioner did not reply. Murphy obtained leave to seek judicial review on 20 January 2020. The Commissioner supplied the requested material in August 2020, eight months after proceedings began. The criminal conviction was later affirmed on appeal.
The High Court had quashed the notice, citing the absence of the documents and the effect of the process on the presumption of innocence. But the Court of Appeal said the pleaded challenge concerned an alleged determination to dismiss, and the High Court had found that the notice made no determination of fact. The wider claim that the process itself compromised the presumption of innocence had not been properly pleaded or argued. The court said a person seeking to halt parallel proceedings must establish a real risk of prejudice; it made no definitive ruling on how such an application should be decided in a future Regulation 12 case.
Applying the principle in Rowland v An Post to this judicial review, the court said an ongoing employment-related process should generally be allowed to run its course where procedural problems can still be corrected. The Commissioner was bound to act fairly, and the documents were eventually provided. The court concluded the process could not be said to have gone irremediably wrong when Murphy sought judicial review.
The appeal was allowed. On costs, the court proposed that Murphy receive his High Court costs up to the provision of the documents on 8 August 2020, with each side bearing its own costs thereafter in both courts. Either party could contest that proposed order within 21 days.