The High Court has refused an application by serving Garda Brian Canavan to prevent the continuation of a disciplinary investigation by Detective Inspector Paul Cleary.
In a judgment delivered on 16 March 2018, Ms Justice Baker held that a report prepared by Inspector Cleary in December 2015 was not a final report under the Garda Síochána (Discipline) Regulations 2007. The investigation could therefore continue. The court refused the relief sought; it did not decide the underlying disciplinary allegations.
The case followed an earlier judicial review in which Canavan had sought to stop two disciplinary investigations. In May 2016, the court refused to prohibit those investigations, but declared that his continued suspension without pay had not been shown to be justified and ordered his reinstatement on full pay and allowances.
After that judgment, Inspector Cleary wrote to Canavan’s solicitor seeking an interview. The solicitor objected that reopening the investigation contradicted the position in the earlier proceedings and the regulations. The Chief State Solicitor’s office replied that the investigation had never concluded and that Canavan was required to attend; it said a refusal might be treated as a failure to cooperate.
Canavan argued that Inspector Cleary had completed his statutory role by submitting a report containing findings about alleged failures to account for property and substances. He said the regulations did not provide for an interim report, and that the investigation could not be resumed. He also argued that statements made during the earlier proceedings created an assurance or legitimate expectation that the investigation was over, and that res judicata or autrefois acquit principles barred its continuation.
Justice Baker found that the report contained firm conclusions but no recommendation on whether the facts warranted a board of inquiry, as required by Regulation 24(5). It also said that the exact number of alleged breaches could not be quantified and sought further advice. The judge concluded, as a matter of fact, that Inspector Cleary had not completed the investigation or prepared a final report. She rejected the claim that he was functus officio or that continuing the investigation was ultra vires.
The court also rejected the arguments based on representations and legitimate expectation. The earlier proceedings had focused on Canavan’s suspension, and the investigation’s completion was not an issue decided in that judgment. Justice Baker found that the statements relied on could not have caused Canavan to change his position in those proceedings. She said it would not be substantively unfair to allow the investigation to be completed, and refused the application.