Major Discipline

Formal Inquiry

The formal inquiry procedure may be adopted where the summary procedure is not appropriate for use. The appointing officer forwards documents to the Commissioner relating to the subject matter of the complaint.

The inquiry is held either by one or more officers appointed for that purpose by the Commissioner. Where one officer is involved, he must be of a rank not less than Chief Superintendent and is the presiding officer. Where there are three officers, one must be of rank of Chief Superintendent and another of rank not lower than Superintendent. The senior member is the presiding officer. The member may submit not more than two objections to the proposed membership of the team.

The inquiry may call on the member to confirm whether he disputes certain matters. Persons who are required to attend to ascertain facts must be given notice to attend. The member concerned may request persons to be notified for attending for examination.

Procedure

Natural justice requires that the person accused is entitled to have his own witnesses and put forward his version of the events or matter. A person who is not a member of the force may be required to attend. It is an offence not to answer a notice to attend.

The inquiry is held in private. It may require information to be given on oath. A record of the proceedings must be taken. The presiding officer must read the particulars of the breach. He must give the member the option to admit the breach, admit the facts but deny they constitute a breach or deny the breach or admit other facts relevant to the alleged breach.

An investigating officer not below the rank of Inspector presents the case against a member. It is an offence for a request to refuse to give evidence.  The member may present his case either themselves, through a member of the force or a legal advisor. He may call and have his witness examined.

The older rules provided for a standard of proof are beyond a reasonable doubt. In any disciplinary proceedings, proof of a breach of discipline is now to be established on the balance of probabilities.

Decision & Sanctions

The inquiry determines whether there has been a breach. It may find a breach different to that alleged to arise from the facts.

Where the matter was dealt with by an appointing officer only, he may decide to take sanctions ranging from

• advice,
• caution,
• recommendation,
• pay reduction, not more than one week’s pay,
•  reprimand.

In the case of a disciplinary matter with a one-member inquiry, pay may be reduced by up to two week’s pay.  The inquiry itself may make the sanctions. it does not recommend them.

A three-member inquiry may recommend one or a number of more serious sanctions depending on the significance of the breach, including

• demotion,
• requirement to retire or resign as an alternative to dismissal,
• reduction in rank,
•  dismissal.

Report & Appeal

Upon completion of the inquiry, a report is prepared for the Commissioner. It may set out the circumstances as to the member’s record, conduct etc. for consideration by the Commissioner.

The Commissioner may choose a sanction other than that recommended. He may choose any sanction that a three-member inquiry could have imposed. The Constitutionality of the procedure by which the Commissioner makes the ultimate decision has successfully withstood challenge on the basis that it did not constitute an unlawful exercise of the judicial power.

The member may apply for a review of the decision of an inquiry or the Commissioner’s decision on disciplinary action recommended by a three-member inquiry. The review is heard by an appeal board appointed by the Commissioner as required. It comprises three persons. The chairperson is selected by the Commissioner from a panel nominated by the Minister for Justice. It must consist of not more than five persons, each of whom is a District Court Judge, a practising solicitor or a barrister of 10 years’ experience.

There must be a Chairman. The other members of the appeal board are the Commissioner and his nominee and a member of the Central Executive Committee of the representative association of which the Garda is a member. The board hears /reviews applications referred by the Commissioner. The board sits in private. The member and presenting officer may appear and to make presentations.

Where the hearing arises from an inquiry at which information was given on oath, the board will normally proceed by considering the record of the inquiry. Additional evidence may be required and heard. The board may affirm, set aside or find the member in breach of another disciplinary offence.

Double Jeopardy

Where a disciplinary offence also constitutes a criminal offence, the regulation seeks to protect to some extent against double jeopardy. If a person is convicted of an offence, he cannot be proceeded against for breach of discipline for the same matter. If disciplinary proceedings had already commenced at the time of conviction, they should then be discontinued.

If the disciplinary matter relates to issues that were not part of the criminal proceedings, the double jeopardy principle would not apply. The complaint on which the breach of discipline/conduct rules would have to be equivalent to the relevant criminal charge.

If the member is acquitted in relation to the criminal matter it will normally bar disciplinary proceedings for the same act or matter. However, the acquittal must be on the merits rather than on a technical ground. Where proceedings are thrown out on a technicality on indictment, the protection will apply. This does not apply in District Court proceedings.

The fact that disciplinary proceedings have taken place is not a bar to subsequent criminal proceedings for the same matter. In practice, however, disciplinary proceedings are usually suspended during criminal proceedings.

Suspension

The Commissioner enjoys the power of suspension of all persons up to the rank of Chief Superintendent. It must be exercised in accordance with the regulations. The discretion allows the Commissioner to suspend a member where it is in his opinion, desirable.

The power to suspend may be used by the Deputy Commissioner, Assistant Commissioner and Chief Superintendent where there has been a delegation of the Commissioner’s powers.

The suspension will often be exercised as a precautionary matter while a serious breach of discipline is investigated and determined. Although the power to suspend appears in broad terms, it is likely to be subject to principles of natural justice, at least in some cases. This may apply even in the case of suspension on full pay given that it reflects on the member’s reputation.

There may be circumstances, however, where it is appropriate that an immediate suspension takes place without the detailed adherence to what natural justice or constitutional justice might otherwise require. It may be sufficient that constitutional justice is afforded at a later stage of the proceeding.

The Supreme Court took the view in the 1980s that a suspension pending disciplinary proceedings was not subject to challenge on the grounds of constitutional justice. The Supreme Court reasoned that the decision was not on the merits but related to a necessary power in a disciplined organization.

Dismissal

The Commissioner has the power to summarily dismiss a member not higher than the rank of Inspector. This may be done if he considers the member unfit for retention in the force. It is likely that the apparently subjective power is subject to the principles of constitutional justice at least in most circumstances.

Generally, an inquiry is necessary to establish facts. The member should be given the opportunity to put his case. There may be circumstances where, by way of analogy with summary dismissal for extreme misconduct, where natural justice would not require full disciplinary proceedings.

The courts have been sympathetic to the needs for members of the Garda Síochána, the  Armed Force and prison services to be trustworthy and may be prepared to give wider latitude to the Commissioner to exercise his powers in exceptional circumstances.

If the Commissioner were to personally witness a grave breach of discipline in his presence, an inquiry may not be necessary. There is a grey area as to how self-evident and uncontested the matter must be before a summary power to dismiss without inquiry might arise. The courts lean very heavily towards the right to due process, even where the case appears open and shut.

Natural Justice

The requirements of natural justice impose a duty on the authorities, before discharging a person for misconduct, to give notice of the intention to discharge him and the reasons for the discharge. He should be given the essential facts and findings that constitute the reason and an opportunity to present his evidence. This principle has been applied in numerous cases, including ones relating to Gardai and members of the Army.

In almost all cases where a serious sanction is proposed and where the relevant facts are contested but not admitted, due process and natural justice would be required. There may be exceptions, for example, there is no doubt about the material facts. This may arise when a person has been actually convicted of a serious offence. Equally, where there is some direct admission or unquestionable evidence of a non-serious offence, summary dismissal may be possible.

Difficult questions arise where disclosure of facts may prejudice State security. If the proceedings would disclose matters of state security, a circumscription of normal due process may be permissible. However, the courts will not tend to allow the mere allegation that State security or interest are involved, are sufficient grounds and they may inquire into the position.

When a member has refused to attend over such period and in such circumstances that he is presumed to abandon his membership, summary dismissal may be allowed. However, in most if not all cases,   the facts should be investigated and ascertained. Generally, a person is entitled to make representations in relation to a matter that is prospectively adverse to his interests.

Proceedings may take place where a member is absent, where there is some good reason. It must be reasonable to proceed in the circumstances. The reason for absence will be important.

It would appear that once proceedings are initiated, they may proceed if the member later resigns. However, if the resignation predates the commencing of the proceedings, there will not appear to be jurisdiction.

Trainees

There is specific provision for the discipline of trainees who have not completed probation. Probation and retention may be terminated if the Commissioner decides that the trainee is not fit physically or mentally to perform the duties of a member and is not likely to become an efficient and well-conducted member.

Notice need not be given if he is unsuitable for continued employment or by reason of misconduct. If, on completion of a period of traineeship, he is not accepted as a member, the assignment will terminate automatically. Despite the terms of probation, some due process may be required. Fair procedures may be required for a dismissal on the grounds of misconduct or other grounds that reflect adversely on the trainee’s good name and reputation.