Disciplinary inquiry against prison officer for acquitted criminal misconduct dismissed as unfair procedure.

THE SUPREME COURT

Record No. 17/2004

Murray C.J.

Denham J.

Geoghegan J.

BETWEEN/

ALAN GARVEY

Applicant/Appellant

and

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE GOVERNOR OF MOUNTJOY PRISON

Respondents

and

THE ATTORNEY GENERAL

Notice Party

JUDGMENT of Mr. Justice Geoghegan delivered 26th day of January 2006

1. This appeal raises yet again an age old question on which there are decisions of this court not all that easy to reconcile. In my

view, a reasonable explanation can be found for any apparent discrepancy as will emerge later on in this judgment. The point of

difficulty is whether a public employee working within a structure that includes disciplinary proceedings involving suspension and/or

permanent dismissal can be subjected to those proceedings if the misconduct alleged would constitute a criminal offence of which the

employee has already been acquitted on the merits.

2. Interestingly, this problem does not arise in the Garda Síochána in that Regulation 38 of the Garda Síochána (Discipline)

Regulations, 1989 (S.I. No. 94/1989) provides that where a member has been acquitted of an offence, proceedings of a disciplinary

nature under those regulations may not be brought and must be discontinued if already brought, if the alleged breach of discipline “is

in substance the same as the offence of which (the officer) has been … acquitted.”

3. It appears indeed that that regulation represents what had always been the practice within the Garda Síochána.

4. This case does not deal with members of the Garda Síochána but rather with a member of the prison service. Nevertheless the

existence of the regulation and the pre-existing practice in the Garda Síochána is, I think, of some, at least, makeweight assistance in

arriving at a determination of this appeal and I will return to it in due course.

5. There is no equivalent statutory or other regulation affecting the prison service and, therefore, this appeal has to be approached

on general principles.

6. A summary of the material facts is as follows. On the 18th September, 1999 there was trouble and riotous misconduct among the

prisoners in Mountjoy Prison. One of the offending prisoners sustained a substantial injury to his face and it was alleged by some of

the other prison officers that these facial injuries were caused by the appellant who was one of their number kicking the prisoner in

the face. The prisoner’s mother complained to the Governor and an investigation within the prison was initiated. The appellant

received notification on the 24th September, 1999 of suspension from his employment as a prison officer. The suspension was initially

without pay but it was later indicated that he would be given 75 per cent of his pay during his suspension. The appellant challenged

the lawfulness of his suspension and in that connection obtained leave from the High Court (McGuinness J.) on the 1st November,

1999 to bring judicial review proceedings. Before those proceedings ever came on for hearing the Director of Public Prosecutions

brought criminal charges against the appellant for assault causing harm and assault causing serious harm under sections 3 and 4 of

the Non-Fatal Offences against the Person Act, 1997. While a trial was awaited in the criminal proceedings the judicial review

application came on for hearing on the 8th May, 2001. On that day a settlement was arrived at whereby the judicial review

proceedings were struck out with no order on certain agreed terms signed on behalf of the parties. By way of explanation and before I

set out the terms, I should mention that at the stage of granting leave, McGuinness J. directed that full salary was to be paid during

the suspension and pending the hearing and not the earlier mentioned reduced salary. The settlement terms read as follows:

“Strike out proceedings with no order

Respondent undertakes to continue payment of applicant's salary as defined in the order of McGuinness J. of 15/11/99 pending

determination of criminal proceedings and thereafter in the event of acquittal until the final determination of disciplinary

proceedings, if any, it being expressly understood between the parties that in the event of acquittal in the criminal

proceedings the applicant is entitled to contend that disciplinary proceedings are not maintainable.

Further, in the event of a favourable outcome overall, the applicant reserves the right to seek any damages or indemnity as

he may be advised arising out of these matters, saving the costs of these proceedings.”

7. The criminal trial did not come on for hearing until the 18th February, 2002. The trial lasted five weeks before His Honour Judge

Lynch and a jury in the Dublin Circuit Court. The jury deliberated for sixteen hours and returned a verdict of not guilty on each count.

8. The information in the possession of this court as to what went on at the trial is limited but it seems clear that essentially the

issues were of credibility, the appellant alleging that he was in some way framed and scapegoated by other prison staff.

9. Following on the criminal trial the appellant requested that his suspension be lifted. This was not done. On the contrary, on the

27th April, 2002 the appellant was handed an envelope containing a series of disciplinary charges under the Prison (Disciplinary Code

for Officers) Rules, 1996. The initiating letter was from the Deputy Governor, Mr. Vincent Duffy and dated the 3rd April, 2002. It noted

the acquittal which had taken place on the 24th March, 2002 but went on to allege that the appellant “may have committed a

breach of prison discipline under the code” and that there was “a case to be answered” on his behalf. Complaint forms which required

statements and relevant information from the appellant to be filled in were enclosed. The particular breaches of discipline alleged were

drawn from a schedule attached to the 1996 Rules and were in point of form and by reference to the schedule as follows:

“1(f) Discreditable conduct, that is to say, while on duty assaulting any other member of the Prison Service or any other

person.”

“11(a) Unlawful or unnecessary exercise of authority, that is to say, deliberately and unnecessarily acting in a manner

calculated or likely to provoke a prisoner.”

“11(b) Unlawful or unnecessary exercise of authority, that is to say, using force unnecessarily in dealing with a prisoner or,

where the application of force to a prisoner is necessary, using undue force.”

10. As required by the prescribed form, particulars of each of these three allegations are set out but in each case the particulars are

identical and comprise the set of alleged facts on foot of which the appellant was tried and acquitted. Those particulars read as

follows:

“Particulars of allegation including place, time and date of breach of discipline alleged.

At approximately 5.00 p.m. on 18th September 1999 a C&R team were moving offender Colm Fogarty from Cell 24 on B2

landing to F3 padded cell in the medical unit. When the van carrying the offender arrived outside the medical unit and the C&R

team were unloading the offender from the van you kicked Colm Fogarty in the face inflicting injury”.

11. Enclosed with these complaint forms was a bundle of documents comprising for the most part statements by other members of

the prison staff implicating in varying degrees the appellant with the alleged assault.

12. Apparently, in April 2002 also disciplinary proceedings under the 1996 Rules were instituted against other prison officers who had

given evidence in the course of the appellant’s criminal trial. Those officers brought judicial review proceedings as a consequence of

which the disciplinary proceedings against them were abandoned and, apparently, orders of prohibition and certiorari were made by

the High Court on the 4th November, 2002. Having regard to the view which I will be taking in relation to this appeal, I am not

concerning myself with this aspect of it even though a ruling by the learned trial judge (Ó Caoimh J.) that evidence concerning those

proceedings was inadmissible is formally appealed against in the notice of appeal. Without much more information the only relevance I

could possibly attach to that fact is that as the appellant himself points out, if the disciplinary proceedings go ahead he will be in a

kind of splendid isolation notwithstanding contentious evidence over many weeks of the criminal trial.

13. The case came on before the High Court on foot of a lengthy statement of grounds which I do not find it necessary to list in this

judgment as the real issues between the parties have become narrowed. In a reserved judgment, Ó Caoimh J. in the High Court

refused judicial review on all grounds put forward including what in my view was the most important of the grounds, that is to say,

that the disciplinary proceedings were to relate to the exact same allegation on foot of which the appellant had been acquitted on

the merits. The learned trial judge reviewed the case law with particular reference to two Supreme Court decisions, that is to say,

McGrath v. The Commissioner of An Garda Síochána [1991] 1 I.R. 69 and Mooney v. An Post [1998] 4 I.R. 288. At the risk of

oversimplifying the judgment of the learned trial judge, what he more or less held was that the correct general principles were set out

in Mooney and that McGrath was a special case decided on its own facts. In McGrath this court held that a garda disciplinary inquiry

against a garda in respect of allegations of which he had been acquitted in a criminal trial should not be allowed to proceed. On the

other hand in Mooney this court held that An Post was entitled to proceed with an inquiry against a postman and demand answers

from him in respect of allegations which had been the subject matter of a criminal prosecution in which he had been acquitted.

14. This court in Mooney did not purport to overrule McGrath but considered that McGrath was decided on special facts. O’Flaherty J.

was a member of both courts. Although it is almost impossible fully to reconcile the two decisions it is necessary to do so as far as

possible. In broad outline, I agree with the learned trial judge that the correct general principles are set out in Mooney but to a large

degree the same general principles are set out in McGrath. The decision in Mooney does not inevitably lead to the conclusion, as the

learned trial judge seemed to think it did, that this appeal should be decided the same way or in other words that the judicial review

should be refused. It is important to consider as I propose to do whether the surrounding facts and circumstances of this case render

it oppressive and unfair to allow the disciplinary inquiry proceed, as was the view taken by this court on the particular facts of

McGrath.

15. Before I express views on this particular matter, I think it important to review in more detail both McGrath and Mooney. I do not

intend to refer, except in passing, to any of the other authorities cited before us as having regard to the view I take I do not think

they are particularly material.

16. In McGrath v. The Commissioner of An Garda Síochána the applicant, a guard, had been charged before the District Court with

embezzlement of sums of money received by him in purported payment of court fines. The applicant had not issued official receipts for

the payments and as a consequence the orders had been returned to the court as unexecuted thereby putting the persons who had

paid the fines in peril of imprisonment. The applicant was tried by a jury in the Circuit Court and was acquitted on all three charges

but he was subsequently notified that he was to be charged with breaches of garda discipline including three charges of corrupt or

improper practice. The particulars alleged a failure to account for the three sums of money received in the course of his duty and

these were the sums which were the subject matter of the criminal charges. In an application by way of judicial review seeking an

order of prohibition to stop the disciplinary inquiry the High Court made an order limiting the disciplinary inquiries to the issue of

“improper practice”. The Commissioner appealed to this court and the appeal was unanimously dismissed, the judges being Finlay

C.J., Griffin, Hederman, McCarthy and O’Flaherty JJ. The leading judgment was delivered by Hederman J. but in order to discover the

agreed ratio decidendi it is necessary to read and parse the two other written judgments delivered by Finlay C.J. and McCarthy J.

respectively. Finlay C.J. began his judgment by making it quite clear that he agreed with the “conclusion” reached by Hederman J.

that the appeal should be dismissed “since to permit the garda investigation to proceed into a complaint of corrupt practice would,

in the particular circumstances of this case, amount to an unfair procedure.” It would seem to me that the former Chief Justice was

agreeing with Hederman J. to that extent only and was not necessarily agreeing with other obiter dicta. This view is reinforced by the

second paragraph of the judgment of Finlay C.J. He said the following:

“I would emphasise, however, as is clear from that judgment, that there cannot, it would appear to me, be any general

principle that an acquittal on a criminal charge in respect of an offence, irrespective of the reason for such acquittal, or the

basis on which it was achieved, could be inevitably an estoppel preventing a disciplinary investigation arising out of the same

set of facts.”

17. Finlay C.J. then went on to point out that there was no suggestion contained in the case that the verdict in the criminal trial

arose through any technicality or any failure of attendance by a particular witness who might be available at a subsequent disciplinary

hearing or any other similar circumstance. It was accepted that the verdict was a verdict on the merits of the particular charge

“after a full and proper hearing”. The next sentence completes his judgment and reads as follows:

“In those circumstances, it seems to me that a disciplinary hearing now prosecuted, arising out of the identical facts and

allegation of corruption, would be a basically unfair procedure.”

18. It is important to signpost at this point that the former Chief Justice made no reference to different standards of proof which

might or might not apply as between the criminal liability and any findings of breach of discipline in a disciplinary inquiry.

19. Hederman J. at p. 72 of the report said the following:

“The hearing of the alleged breaches of discipline before the disciplinary inquiry would seek to repeat the same ground as in

the criminal trial. It was conceded by counsel for the respondent that this had never been done in practice in the past and

could not be done under the new regulations in the future: see reg. 38 of the Garda Síochána (Discipline) Regulations, 1989

(S.I. No. 94) – in force from the 1st June, 1989, but not applicable to the present proceedings by virtue of reg. 5 thereof”.

20. The learned judge then went on to point out that it had been argued that it was permissible and that there was no question of

res judicata. It had been stated that the parties were different and that the onus of proof in a criminal trial and in an inquiry were not

the same. I rather suspect that by the expression “the onus of proof” the learned judge may have meant “standard of proof” though

not necessarily so because in a disciplinary inquiry the party investigated into might be bound to answer questions. Hederman J. at p.

73 then laid emphasis on the fact that there was a “single point” in the case the jury had to decide: “Did the accused act

dishonestly?”. He pointed out that the jury resolved that issue by acquitting the accused. He said that there was no additional factor

that could be placed before the disciplinary inquiry.

21. At the bottom of p. 73 of the report Hederman J. said the following:

“… is it just that a matter so clearly decided (admittedly on a different burden of proof) should now be reopened when it is

conceded that the practice in the past has been universally not to do so and where neither the High Court nor this Court has

been told of any special features which would indicate that this member of the Garda Síochána should be treated differently

from all other members of the force?”

22. At first sight that passage might seem to suggest that the past practice within the Garda Síochána was the deciding factor but

when the judgment is read as a whole and when the other judgments are read, I do not think that that conclusion is correct. It was

obviously a factor but only one factor. Hederman J. goes on to observe in the next paragraph:

“The object of the criminal proceedings was to establish that the applicant was guilty of dishonest acts which, if established,

would have exposed him to punishment. He was acquitted. The object of the disciplinary proceedings is to establish that he

was guilty of the same acts as those in respect of which he was acquitted.

… … … … … … … … … … … … ...

… ... … … … … … … … … … … …

If such an allegation is made out at the disciplinary hearing he is again exposed to punishment. Thus he is in effect being

retried on issues already determined and he is, once again, exposed to the possibility of punishment. This cannot be done

without seeking to set at nought the result of the verdict of the jury. I make a distinction between the consequences that

might flow from any purely civil action and the disciplinary hearing procedure. The disciplinary hearing is more serious in its

consequences than a mere civil action.”

23. For my own part, I entirely agree with Hederman J. that a sharp distinction must be drawn between a civil action and a

disciplinary inquiry. An acquittal for an assault would not bar a civil action for the same assault. In varying circumstances however it

may bar a disciplinary inquiry as it ultimately involves a potential punishment or penalty. However, it is clear both from McGrath and

Mooney that an acquittal does not necessarily per se bar a disciplinary inquiry involving the same matter. Still less does McGrath

support any suggested estoppel or res judicata. Finlay C.J. expressly ruled this out as did McCarthy J. Hederman J. left it somewhat

open. O’Flaherty J. agreed with Hederman J. But the agreement of Griffin J. with both the judgments of Finlay C.J. and Hederman J.

can only be interpreted as an agreement with the judgment of Hederman J. subject to the qualifications of Finlay C.J. I think,

therefore, that McGrath rules out any question of res judicata. As McCarthy J. points out, even if there can be privity of parties

where different organs of the State are involved the issue will not be the same. As he put it “acquitting a garda of assault would not

preclude a garda investigation into a breach of discipline such as abuse of authority in failing to behave with due courtesy towards a

member of the public.”

24. In summary, my view is that McGrath v. The Commissioner of An Garda Síochána is authority for the proposition that it may in

any given circumstances be unfair and oppressive to conduct a disciplinary inquiry into the same issues in respect of which there has

been an acquittal on the merits at a criminal trial but this will depend on the particular surrounding circumstances and in particular

their cumulative effect. There is no necessary preclusion per se of such a double process.

25. I now turn to consider Mooney v. An Post. There were two distinct issues in that case. One was the question of whether the

applicant could rely on his acquittal to defeat an oral inquiry against him in An Post and the other issue was whether fair procedures

required that the oral hearing be conducted before an independent chairman. The head note is, in my view, somewhat misleading in

that it gives as the main ground for the court dismissing the appeal

“that it would be absurd if a party who had failed to establish a proposition beyond all reasonable doubt should, by that fact

alone, be debarred from attempting to establish the same proposition on the balance of probabilities.”

26. That remark was undoubtedly made by Barrington J. in the course of his judgment with which Hamilton C.J. and O’Flaherty J.

agreed but was not isolated as a main discrete ground of decision. It must be remembered, as I have already pointed out, that

O’Flaherty J. was a member of the court that decided McGrath as well as a member of the court that decided Mooney. He clearly did

not see any inconsistency. I am not sure whether the points of distinction between the two cases found by Barrington J. can be

regarded as merely obiter dicta. Unless I am bound by them, I find them somewhat unconvincing but I do not find it necessary to

include in this judgment a detailed analysis of the points of distinction suggested by Barrington J. Fundamentally, the two cases were

different in my view. In Mooney’s case the employer, An Post, had some confidential information against the applicant from a person

who could not be called at the trial. Effectively, An Post laid a trap for the applicant which in their belief he had fallen into and the

criminal charges were based on that. They were not based on the original complaint. In those circumstances, the acquittal

necessarily gave rise to a reasonable requirement on the part of the employer that the employee answer certain questions. There was

a simple issue of whether he was suitable to be retained as a postman. It was an obvious example in my opinion where an acquittal

could not per se prevent further inquiries. I take the view, however, that this particular case is much closer to McGrath than it is to

Mooney. There was a simple issue of credibility in this case namely, whether the appellant had kicked the prisoner in the face and

inflicted the injuries. Whilst the issue was simple, its resolution was clearly anything but simple. As already mentioned, the trial lasted

five weeks and the jury took sixteen hours to deliberate. The jury then found in favour of the appellant. It is true, of course, that it is

possible that a jury merely had a reasonable doubt but I do not think that that speculative possibility, by itself, justifies a rejection of

the contention by the appellant that given the nature of the criminal trial he faced, the issues involved and the fact that essentially it

is all a matter of internal dispute between prison officers, it would be oppressive and an unfair procedure now to unravel the verdict

of the jury by way of disciplinary inquiry.

27. I mentioned early on in this judgment that if the appellant was a member of the Garda Síochána such a disciplinary inquiry would

be forbidden by the relevant statutory regulations. If the Minister for Justice, Equality and Law Reform who has responsibility for the

security of the State on the civil side considered it reasonable to include such a regulation, I am at least impressed by that. I am

further impressed by the fact that it was a long established practice within the Garda Síochána before ever there was a statutory

instrument that a criminal acquittal in the Garda Síochána prevented a disciplinary inquiry relating to an identical allegation. Such an

understanding was not considered unreasonable or a threat to the security of the State. Conduct which could amount to a criminal

offence on the part of a prison officer and in respect of which he is in fact acquitted in a criminal prosecution may in its surrounding

circumstances involve other aspects which would be contrary to good order within the prison service but would not be the actus reus

of the criminal offence. That might be an example of a situation where a disciplinary inquiry following an acquittal would be perfectly

justified. I merely give that as an example and I do not want to limit the circumstances in which such an inquiry would be justified. It

is clear, however, from McGrath that there can be circumstances where such a disciplinary inquiry is oppressive and impermissible. I

have come to the conclusion that this case falls within that category. By now every aspect of the case must have been discussed

within the prison service whether at Governor level or prison officer level. It is impossible to imagine that such a lengthy trial leading

to an acquittal did not give rise to a flow of arguments and opinions throughout the prison. In this claustrophobic atmosphere, I

believe that to use the expression of Finlay C.J. in McGrath it would be a “basically unfair procedure” to conduct a disciplinary inquiry

on what in effect are identical allegations to the criminal charges based on essentially the same evidence and the same witnesses.

28. I am not impressed by the other grounds of appeal. The learned trial judge was correct in pointing out that the 1996 Rules

respecting prison officers do not expressly preclude legal representation. I do not find it necessary to make any final decision on this

issue. It would seem obvious that there could be no automatic right to legal representation but on the other hand, I would be of

opinion that in an important enough case where the prison officer’s employment was at stake the requirement of fair procedures may

include an entitlement to legal representation. Each case would depend on its own facts. The issue of legal representation never

arose in this case and it is not a valid ground on which judicial review could be granted.

29. On the issue of objective bias, I cannot see that it exists in this case. It is clear that the rules envisaged that the Governor would

conduct the inquiry and I am satisfied that the rules are not ultra vires as being contrary to the Constitution. In this connection

counsel for the respondents relied to a large extent on the decision of Kearns J. in the High Court in Allman v. Minister for Justice,

Equality and Law Reform [2003] E.L.R. 7. I agree with the views expressed in that case by Kearns J. and I particularly agree with the

sentence of his cited in the written submissions on behalf of the respondents and notice party.

“Nor do I accept that it is desirable or appropriate in areas of prison discipline to seek to involve outside independent

arbitration or agencies, given the multiple protective statutory layers of protection available to prison officers before a

dismissal can be effected.”

30. Finally, I would reject the proposition that as the Governor prior to June 2000 had available to him the necessary materials on

which to base a decision as to whether or not to proceed with disciplinary proceedings, the postponement of such proceedings until

April 2002 was impermissible. It was entirely reasonable to postpone any disciplinary inquiry till after the outcome of the criminal

proceedings and, in my view, no legitimate criticism can be made against the respondents in this regard.

31. However, I am of opinion as I indicated, that on the particular facts and circumstances of this case fair procedures require that

the verdict of acquittal by the jury not be reopened by way of disciplinary inquiry and I would, therefore, on that ground alone allow

the appeal. The exact form of order can be discussed with counsel.