The High Court has barred a proposed sworn disciplinary inquiry into a serving Garda member, finding that the Commissioner could not rely on regulations repealed before the investigation was formally begun.
In a judgment delivered on 3 April 2014, Ms Justice Baker granted the applicant’s request for an order prohibiting the inquiry. She said the court would hear counsel on the form of the order. The judgment does not record a decision on the underlying disciplinary allegations.
The member was alleged to have committed disciplinary breaches while investigating, from 2005, a complaint of sexual abuse against a Catholic priest. Chief Superintendent Thomas Conway was appointed to investigate on 4 August 2011 under the Garda Síochána (Discipline) Regulations 1989. The Commissioner later proposed a sworn inquiry under those regulations, which had been repealed in 2007 and replaced by new rules.
The member challenged the proposed inquiry’s legal basis after receiving notice in June 2013. The respondent argued that the old rules could still be used because the investigation concerned earlier events and the repeal provisions of the Interpretation Act 2005 preserved the Commissioner’s right to bring proceedings. The respondent also argued that the judicial review was out of time or should be refused for delay.
Justice Baker rejected both preliminary objections. She found that the challenge concerned the distinct decision to convene a sworn inquiry, made on 19 June 2013, rather than the earlier investigative steps. The application was within time, and the respondent had not suffered actual prejudice from delay, she held.
On the substance, the judge found that the Commissioner had no acquired or vested right, at the time the 1989 Regulations were repealed, to commence this investigation under them. The decision setting the statutory inquiry process in motion was made in August 2011, after repeal. She also found that the 2007 Regulations’ transitional provisions showed that the new regime applied to disciplinary proceedings initiated after it came into force, including proceedings concerning alleged breaches from before that date.
The court therefore found the applicant had established a case for prohibition of the sworn inquiry. The ruling addressed the lawfulness of the proposed procedure; it did not determine whether the alleged breaches occurred.