Natural Justice - Conduct alleged to ground the dismissal of the applicant only discreditable in a particular context - Context not set out in the formal charge - Whether fair procedures had been observed.

Both the High Court (Mr Justice Geoghegan ): judgment delivered 13 October 1998.

In laying charge for breach discipline against a person, the bare facts of a charge might not be sufficient if those facts would only constitute discreditable conduct in a particular context and that context is not in any way referred to in the formal charge.

Mr Justice Geoghegan so held in quashing the order of dismissal of the respondent for failure to observe the requirements of constitutional and natural justice.

Adrian Hardiman SC and Stephen McCann BL for the applicant; Paul O'Higgins SC and Nuala Butler BL for the respondent.

Mr Justice Geoghegan said that the application was one certiorari of an order of the respondent directing the applicant, who was a sergeant in the Garda, to resign from the force with effect from 21 March 1997 in accordance with Regulation 32 of the Garda Siochana (Discipline) regulations 1989 and notifying him that in the event of his failure to so resign dismissal was being ordered with effect from the same date. The grounds on which certiorari was sought were essentially that the order had been made in contravention of the rules of natural and constitutional justice and that there had been no breach of discipline within the meaning of the regulations.

The particular breach of discipline alleged against the applicant was that of discreditable conduct, which was defined in paragraph 1 of the schedule to the regulations as "conducting himself in a manner which the member knows, or ought to know, would be prejudicial to discipline or reasonably likely to bring discredit on the Garda Siochana." Mr Justice Geoghegan pointed out that there was a subjective element in this definition and it would not be sufficient that in fact the force had been discredited. The order to resign and with an order of dismissal in default of resignation was based on an incident in which it was alleged the applicant had given a lift to a young man and had had a sexual encounter with him.

The respondent had established a tribunal of inquiry pursuant to the regulations to investigate the incident and to recommend a sanction which should be imposed. This tribunal found that there had been a breach of discipline and recommended a serious sanction. The respondent chose to ask for the applicant's resignation and in default of his doing so, recommended that he be dismissed. The applicant subsequently appealed to an appeal board and the original decision of the tribunal was affirmed.

At an early stage in the investigation, the applicant's solicitor had written to the investigating officer asking, inter alia, whether it was alleged that the applicant was involved in the commission of a criminal offence and whether the fact that the behaviour was homosexual in appearance was part of the allegation of breach of discipline against the applicant. The only response, received was a prompt one, informing the applicant that the matter was at an preliminary stage only and that no specific breach of discipline contained in the schedule to the regulations had yet been alleged. However, the letter from the applicant's solicitor was not answered even after a formal and detailed allegation was laid against the applicant.

Mr Justice Geoghegan outlined the charge against the applicant. It was not alleged that the applicant was on duty or that sexual activity was non-consensual or that the activity was done within the view of third parties. On would have to question whether an analogous incident with a female would constitute "discreditable conduct" or a t ;east whether the applicant could be necessarily expected to know it would be such. Given that statuary and public tolerance of consensual homosexual activity, it was a tenable view that in considering whether such conduct was discreditable or not, the homosexual aspect should not be taken into account.

Mr Justice Geoghegan said that here were extra factors present in this case, in that the young man was a stranger to the application and was heterosexual. However, the bald facts of a charge might not be sufficient is those bald facts only constitute discreditable conduct in a particular context and that context is not in any way referred to in the formal charge.

There was no doubt that even on an interpretation most favourable to the applicant there was a great deal of context in this case which rendered the applicant's conduct reprehensible and discreditable. However, the applicant was entitled to know exactly what he was being charged with and in the absence of knowing that, he had no way of knowing the reasoning behind the decision of the tribunal of inquiry which simply found the charge proved as laid. The appeal board in turn gave no reasons but simply affirmed the decision of the tribunal. At all material times, the applicant had been left in the dark as to whether the question of the alleged conduct being consensual or non-consensual was regarded as relevant and also as to the question of whether the fact that the conduct was homosexual rather than heterosexual was considered as relevant. (Mr Justice Geoghegan said that it might be that heterosexual consensual conduct in similar circumstances might, depending on the facts, give rise to a finding of discreditable conduct and a recommendation of dismissal, but that was not in issue here). The applicant had never been told precisely what was alleged against him to be discreditable conduct and it was particularly rendered unclear by the closing address to the tribunal of inquiry by the presenting guard who referred to the activities of the applicant as an assault. Mr Justice Geoghegan found that the applicant had not had the benefit of fair procedures and granted an order quashing the respondent's decision.

Solicitors: Dore & Company (Dublin) for the applicant; Chief State Solicitor for the respondent.