The Court of Appeal found there was nothing in the Garda Siochana Act 2005 (the ‘Act’) which expressly precludes the commencement of disciplinary proceedings following the acquittal of a member in a criminal prosecution. The Court reasoned that where the Garda Siochana Ombudsman Commission (‘GSOC’) investigated and found there had been no misbehaviour it could be interpreted that no further action be taken against the member per section 105 of the Act. However, this was not the case here and in fact GSOC had recommended a criminal prosecution. Commenting on its reasoning the Court stated that it would ‘be unlikely that the Oireachtas would have intended that in this situation the Garda Commissioner would have been powerless to take any further action where the prosecution resulted in an acquittal’.
The Court also went on to reject the arguments put forward by the appellant that further inquiry of his behaviour would be in breach of the Garda Siochana (Discipline) Regulations 2007 (S.I. No. 214 of 2007). While it found that there invariably would be some overlap the commencement or continuation of any disciplinary charges would not be unfair or oppressive within the meaning of Regulations. Finally, the appellant had failed to make out a reasonable case of legitimate expectation that the Garda Commissioner would not proceed with an internal disciplinary investigation. He had been notified of this in writing shortly after communication from GSOC that it had finished with its investigative process.
By way of background the appellant Garda McKenna had been accused of using offensive language and excessive force towards a foreign individual in his custody in 2010. The incident was referred to the Garda Siochana Ombudsman Commission. The matter was investigated by the Ombudsman who then referred the issue to the Director of Public Prosecution. The Director brought forward a charge against Garda McKenna under section 3 of the Non-fatal Offences against the Person Act 1997. The appellant had been found guilty at District Court level and subsequently acquitted by the Circuit Court. Following the acquittal the appellant was informed by GSOC it would not be investigating the matter any further.
The issue of taking further disciplinary action on the matter was brought by the Garda Commissioner and the appellant was informed that the issue would be investigated by the Board of Inquiry. The three questions that were brought before the Board were
1) Had Garda McKenna used offensive language towards the individual in question
2) Had Garda McKenna disregarded the prisoner’s right to bodily integrity
3) Had Garda McKenna used excessive force towards the individual
The Court of Appeal upholding the earlier findings of Judge Baker in the High Court found that there was no grounds for stopping the disciplinary proceedings from continuing.
For full judgement Thomas McKenna v Commissioner of An Garda Siochana.
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