STATUTORY INSTRUMENTS
S.I. No. 214 of 2007
Garda Síochána (Discipline) Regulations 2007
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PRN. A7/0881
I, Michael McDowell, Minister for Justice, Equality and Law Reform, in exercise of the
powers conferred on me by section 123 of the Garda Síochána Act 2005 (No. 20 of 2005),
after consulting with the Commissioner of the Garda Síochána and with the approval of the
Government, hereby make the following regulations:
PART 1
PRELIMINARY
Short title
1.
These regulations may be cited as the Garda Síochána (Discipline) Regulations 2007.
Commencement
2.
These regulations come into operation on 1 June 2007.
Interpretation
3.
(1)
In these regulations -
“act” includes omission, and references to the doing of an act include references to the
making of an omission;
2
“Act” means the Garda Síochána Act 2005;
“appointing officer” has the meaning given to it in Regulation 14(2);
“breach of discipline” has the meaning given to it by Regulation 5 and “in breach of
discipline” is to be construed accordingly;
“Commissioner” means -
(a)
the Commissioner of the Garda Síochána,
(b)
a deputy commissioner, or an assistant commissioner, when
performing functions of the Commissioner in accordance with an
authorisation in that behalf under section 32, or
(c)
a member not below the rank of chief superintendent, when performing
any of the Commissioner’s functions under these regulations that have
been duly delegated to him or her.
“deciding officer” means a member appointed under Regulation 14(1).
“disciplinary action” means a disciplinary action specified in Regulation 10, 14(3) or 22;
3
“disciplinary proceedings” means any informal process, interview, investigation, inquiry,
review, or appeal, conducted in accordance with these regulations;
“interview” means an interview referred to in Part 2;
“informal process” means any process for the informal resolution of minor breaches of
discipline in accordance with Regulation 10;
“member” means -
(a)
a member of the Garda Síochána, except the Commissioner,
(b)
a reserve member, and
(c)
a seconded member of the Police Service of Northern Ireland;
“member concerned” means a member who is believed to be, alleged to be or found to have
been in breach of discipline;
“Minister” means the Minister for Justice, Equality and Law Reform;
4
“reserve member” means a person appointed as a reserve member of the Garda Síochána
under section 15.
(2)
References in these regulations to a section are references to a section of the
Act.
Taking account of record of service, etc.
4.
Where the imposition of a disciplinary sanction is being considered in disciplinary
proceedings -
(a)
due regard shall be had to the record of service, previous conduct and
circumstances of the member concerned and to any other relevant
matter,
(b)
submissions may be received from any person for that purpose, and
(c)
the member concerned and any person accompanying the member at
the proceedings shall be given an opportunity to make oral or, where
appropriate, written submissions with regard to such matters.
5
Breach of discipline
5.
Any act or conduct by a member which is mentioned in the Schedule constitutes a
breach of discipline.
Restriction on delegation by Commissioner of functions under these regulations
6.
(1)
A delegation in writing by the Commissioner in accordance with section 31 of
any functions to which this regulation applies may be made only to a member, or members of
a specified rank, not below the rank of chief superintendent.
(2)
Such a delegation may be made subject to any such terms, conditions or
restrictions as may be determined by the Commissioner.
(3)
This regulation applies to any of the Commissioner’s functions under these
regulations except those relating to dismissal, a requirement to retire or resign as an
alternative to dismissal or a reduction in rank.
Suspension of member
7.
(1)
Where, in the opinion of the Commissioner, the circumstances render such a
course desirable in the interests of the Garda Síochána, he or she may suspend a member
from duty.
6
(2)
A member so suspended remains suspended until the Commissioner decides
that the suspension should cease.
(3)
The Commissioner shall review the suspension of a member every 3 months
or at such shorter intervals as he or she considers necessary, but any non-compliance with this
paragraph does not of itself invalidate a suspension.
(4)
A member to whom the function of suspending a member is delegated by the
Commissioner may not suspend a member for a period exceeding 10 days, but the
Commissioner may extend the suspension.
(5)
A member who is suspended and is required by the Commissioner or the
Government, as the case may be, to retire or resign as an alternative to dismissal, remains
suspended during the period of any notice of retirement or resignation that may be given.
Disciplinary proceedings and any related criminal proceedings.
8.
(1)
Disciplinary proceedings may be taken against a member under these
regulations notwithstanding that proceedings for an offence have been or may be instituted
against the member arising out of the same circumstances.
7
(2)
Where a member has been acquitted on the merits of an offence, proceedings
under these regulations for an alleged breach of discipline shall not be commenced or, if
already commenced, continued if -
(a)
the proceedings would involve conducting an inquiry into the same
issues in respect of which the member was so acquitted, and
(b)
in all the circumstances of the particular case and their cumulative
effect, it would be unfair and oppressive to commence or continue the
proceedings.
(3)
Where the District Court, without proceeding to a conviction, finds the facts
alleged in a criminal charge to have been proved against a member, the Government, the
Commissioner, a board of inquiry or an Appeal Board is entitled to rely on the finding as
conclusive.
(4)
Any information, document or thing which the member concerned is required
to provide or produce in disciplinary proceedings and which is related to and used for the
purposes of such proceedings is not admissible in criminal proceedings, unless provided or
produced by the member in those proceedings.
(5)
The content of paragraph (4) shall be explained in ordinary language to the
member concerned by the person or body conducting the disciplinary proceedings.
8
Standard of proof
9.
In any disciplinary proceedings proof of a breach of discipline is to be established on
the balance of probabilities.
Informal resolution of minor breaches
10.
Notwithstanding anything in these regulations, a member whose duties include the
supervision of another member may deal informally with a minor breach of discipline by that
other member, whether by advice, caution or warning, as the circumstances may require.
Reports or statements by board of inquiry or Appeal Board to be privileged
11.
For the purposes of the law of defamation -
(a)
utterances by a member of a board of inquiry or an Appeal Board, and
(b)
statements in reports or other documents prepared by such a member
or an Appeal Board,
9
in the performance of functions under these regulations are privileged, wherever and
whenever published.
Obligation to answer truthfully in disciplinary proceedings
12.
Any person (including the member concerned) who is required to attend disciplinary
proceedings -
(a)
shall answer fully and truthfully any question put during the
proceedings, and
(b)
if so requested by a person conducting the proceedings, shall sign a
declaration as to the truth of his or her answer to any such question.
Transitional provision
13.
Any proceedings in relation to a member under the Garda Síochána (Discipline)
Regulations 1989 (S.I. No. 94 of 1989) which were commenced but not concluded before the
commencement of these regulations may be continued as if these regulations had not been
made.
10
PART 2
LESS SERIOUS BREACHES OF DISCIPLINE
Appointment of deciding officer
14.
(1)
Where -
(a)
it appears that a member may be in breach of discipline and subject to
one of the disciplinary actions specified in paragraph (3), and
(b)
the breach is not being dealt with under Regulation 10,
a member not below the rank of superintendent (in these regulations referred to as a
“deciding officer”) shall be appointed to investigate the alleged breach and interview the
member concerned.
(2)
The appointment shall be made by a member (in these regulations referred to
as an “appointing officer”) who is not below the rank of chief superintendent.
(3)
The following disciplinary actions are specified for the purposes of paragraph
(1):
(a)
reduction in pay not exceeding 2 weeks’ pay,
(b)
reprimand;
11
(4)
(c)
warning;
(d)
caution, or
(e)
advice.
A reduction in pay under paragraph 3(a) shall not, in respect of any breaches
of discipline arising out of the same set of circumstances, exceed 2 weeks’ pay, and the
amount deducted in any one week shall not exceed 10 per cent of weekly pay.
(5)
The appointing officer shall ensure that the deciding officer has not been
involved in any capacity in relation to an earlier aspect of the case.
(6)
Subject to paragraph (7), the deciding officer may, before or during an
interview with the member concerned or during any adjournment of such an interview,
undertake any enquiries, and adopt any procedures, that he or she considers necessary, with a
view to, in particular -
(a)
establishing the facts of the matter under investigation, and
(b)
identifying or resolving any conflicts or differences that may come to
light during the investigation.
12
(7)
The deciding officer may direct a member not below the rank of inspector to
undertake any of the enquiries mentioned in paragraph (6).
Notice of interview
15.
(1)
The deciding officer shall send to the member concerned a notice specifying
the time, date and place of the interview at least 14 days beforehand.
(2)
The notice shall state -
(a)
the grounds on which it appears that the member may have been in
breach of discipline, and
(b)
that the purpose of the interview is to enable the deciding officer to
determine whether that is so.
(3)
The notice shall also state -
(a)
that, if a breach of discipline is established, the deciding officer may
decide to impose one of the sanctions specified in Regulation 14(3),
(b)
that at the interview the member may give any explanation or make
any statement in relation to the matter and in particular may -
13
(i)
admit or deny the alleged breach of discipline,
(ii)
accept that any of the statements supplied under paragraph (4)
are wholly or partly true, but deny that the facts stated in them
constitute a breach of discipline, or
(iii)
deny the alleged breach of discipline but accept that the facts so
stated constitute another such breach, and
(c)
that the member may seek advice from his or her representative
association and may be accompanied at the interview only by an
official of that association or by another member of his or her choice.
(4)
The notice shall be accompanied by copies of any written statements or other
documents relating to the alleged breach of discipline which are in the possession of the
deciding officer arising out of enquiries made under paragraph (6) or (7) of Regulation 14.
(5)
Copies of the notice and any accompanying statements or documents shall be
sent by the deciding officer to the appointing officer.
(6)
Not later than 10 days after receiving the notice, the member may request the
appointing officer in writing to arrange for the interview to be conducted by another deciding
14
officer, and the appointing officer shall then appoint another member in accordance with
Regulation 14 to be the deciding officer for that purpose.
(7)
The member concerned may make a request under paragraph (6) on one
occasion only.
(8)
The deciding officer may extend any period specified in this regulation if
satisfied that it is appropriate to do so.
Procedure where breach of discipline admitted by member concerned
16.
(1)
This regulation applies where -
(a)
the member, within 7 days after receipt of the notice referred to in
Regulation 15(1), admits the breach of discipline alleged and informs
the appointing officer in writing that he or she wishes to have it dealt
with under this regulation, and
(b)
in the opinion of the appointing officer, the breach is such that it may
appropriately be so dealt with by the deciding officer.
15
(2)
Where this regulation applies, the deciding officer may, after interviewing the
member concerned and considering any statement made by him or her, decide to take one of
the disciplinary actions mentioned in Regulation 14(3).
(3)
The deciding officer shall send a notice conveying his or her decision to the
member, who shall note the decision on the notice and return the notice to the deciding
officer who shall, within 14 days after the interview, send a report on the matter to the
appointing officer.
(4)
A reduction in pay under paragraph (2) shall not, in respect of any breaches of
discipline arising out of the same set of circumstances, exceed one week’s pay, and the
amount deducted in any one week shall not exceed 10 per cent of weekly pay.
(5)
If -
(a)
the deciding officer becomes of opinion that the breach of discipline
may not appropriately be dealt with under this regulation, or
(b)
during the interview, the member concerned indicates that he or she
wishes to withdraw the admission of the breach of discipline,
16
the deciding officer shall send a notice to the member informing him or her that the breach of
discipline in question shall be dealt with as if this regulation had not been invoked and inform
the appointing officer accordingly.
Conduct of interview with deciding officer
17.
(1)
Where Regulation 16 does not apply, the deciding officer shall explain in
ordinary language to the member concerned, at the outset of the interview, why it appears
that the member may have been in breach of discipline and give the member an opportunity
to respond, in accordance with Regulation 15(3)(b).
(2)
If the member concerned is accompanied at the interview by an official of his
or her representative association or another member of his or her choice, the official or other
member may make oral or written submissions to the deciding officer on the member’s
behalf.
(3)
The deciding officer may adjourn an interview to a specified time or date if it
appears to him or her expedient to do so.
(4)
On the conclusion of the interview, the deciding officer shall inform the
member concerned -
17
(a)
of his or her decision and, if the decision is that the member is in
breach of discipline, of the disciplinary action that he or she has
decided should be taken in respect of the breach,
(b)
that the member will receive in due course from the appointing officer
a copy of the deciding officer’s report of the interview, and
(c)
that the member may apply to the appointing officer in writing, within
7 days after receiving the report, for a review of the deciding officer’s
decision.
Report of interview
18.
(1)
The deciding officer shall prepare a report of the interview and transmit it to
the appointing officer within 14 days after the interview was held.
(2)
The report shall include the decision of the deciding officer as to -
(a)
whether the member concerned was in breach of discipline and, if so,
the reasons for the decision,
(b)
the conduct constituting any such breach, and
18
(c)
the disciplinary action (if any) to be taken.
Review of deciding officer’s decision
19.
(1)
Within 14 days after receiving the deciding officer’s report, the appointing
officer shall send a copy of the report to the member concerned and notify the member that
he or she may apply in writing to the appointing officer, within 7 days after receiving the
copy and notification, to review the decision of the deciding officer.
(2)
The application for review shall set out one or more than one of the grounds
specified in paragraph (5).
(3)
(4)
The application may relate to the deciding officer’s decision regarding -
(a)
either the breach of discipline or the disciplinary sanction, or
(b)
both the breach and the disciplinary sanction.
The appointing officer may extend the period of 7 days mentioned in
paragraph (1) if satisfied that it is appropriate to do so.
(5)
The decision of the deciding officer may be reviewed by the appointing officer
on one or more than one of the following grounds:
19
(a)
specified provisions of these regulations were not complied with;
(b)
the decision is not justified having regard to the information given by
or on behalf of the member during the interview;
(c)
(d)
all the relevant facts -
(i)
were not ascertained or disclosed,
(ii)
were not considered, or
(iii)
were not considered in a reasonable manner;
the member was not given a reasonable opportunity to answer the
allegation;
(e)
the disciplinary action imposed is disproportionate in relation to the
breach of discipline concerned.
(6)
If an application for review is not received by the appointing officer within the
period specified in paragraph (1), the disciplinary action shall be implemented.
20
Conduct of review
20.
(1)
As soon as practicable after receiving an application for review, the appointing
officer shall consider -
(a)
the report of the interview,
(b)
any comments on the report received by the appointing officer from
the member concerned,
(2)
(c)
the grounds for seeking the review as set out by the member, and
(d)
any other documentation related to the proceedings.
The appointing officer may request clarification in writing -
(a)
from the deciding officer in respect of any aspect of the interview or of
his or her decision, and send a copy of the clarification to the member
concerned, or
(b)
from the member concerned in respect of any of his or her grounds for
seeking the review and send a copy of the clarification to the deciding
officer.
21
(3)
The appointing officer may, if he or she considers it necessary for the purpose
of the review, interview the deciding officer, the member concerned or any other member or
person.
(4)
At any such interview with the member concerned, the member may be
accompanied only by an official of his or her representative association or another member of
his or her choice.
(5)
The appointing officer -
(a)
shall conclude the review within 14 days of receiving the application
for review,
(b)
may decide to affirm, vary or quash the decision of the deciding
officer, and
(c)
shall notify the Commissioner, the member concerned and the deciding
officer accordingly.
(6)
The decision of the appointing officer on the application for review is final.
22
Dealing with breach of discipline otherwise than under this Part
21.
Notwithstanding anything in this Part, if at any time it appears to a deciding officer or
an appointing officer that the circumstances relating to an alleged breach of discipline are
such that -
(a)
it would be appropriate to have the alleged breach dealt with
informally under Regulation 10, or
(b)
it should be referred to the Commissioner to consider whether it should
be dealt with under Part 3,
the deciding officer (with the approval of the appointing officer) or the appointing officer
shall proceed accordingly and so inform the member concerned.
23
PART 3
SERIOUS BREACHES OF DISCIPLINE
Definitions (Part 3)
22.
In this Part -
“Appeal Board” means an Appeal Board established under Regulation 34;
“presiding officer” has the meaning given to it by Regulation 25(4);
“serious breach of discipline” means a breach of discipline which, in the opinion of the
Commissioner, may be subject to one of the following disciplinary actions:
(a)
dismissal;
(b)
requirement to retire or resign as an alternative to dismissal;
(c)
reduction in rank;
(d)
reduction in pay not exceeding 4 weeks’ pay.
24
Action by Commissioner on alleged serious breach
23.
(1)
Where it appears that a member may be in breach of discipline and subject to
one of the disciplinary actions specified in Regulation 22, the Commissioner shall appoint a
member (in this Part referred to as the “investigating officer”) to investigate the alleged
breach.
(2)
If the breach of discipline is alleged to have been committed by a member
below the rank of inspector, the investigating officer shall be of a rank not below that of
inspector.
(3)
In any other case, the investigating officer shall be of a rank not below that of
superintendent.
(4)
The Commissioner shall ensure that the investigating officer, or any other
member or members referred to in Regulation 24(2), have not been involved in any capacity
in relation to an earlier aspect of the case.
Conduct of investigation
24.
(1)
As soon as practicable after his or her appointment, an investigating officer
shall inform the member concerned in writing -
25
(a)
of the grounds on which it appears that the member may have been in
breach of discipline, and
(b)
that the investigating officer has been appointed to carry out an
investigation into the alleged breach.
(2)
The investigating officer shall carry out the investigation either alone or with
the assistance of such other member or members, as he or she may determine, with the
approval of the Commissioner.
(3)
Unless with the approval of the Commissioner, any other such member or
members shall not be of the same rank as, or of a lower rank than, the member concerned.
(4)
The investigating officer shall inform the member that he or she may seek
advice from his or her representative association and may be accompanied at any interview
with the investigating officer by an official of that association, by another member of his or
her choice or by a solicitor or barrister at the member’s expense.
(5)
Within 7 days after the investigation has been completed, the investigating
officer shall submit to the Commissioner a written report of the investigation containing his
or her recommendation as to whether the facts disclosed warrant the establishment of a board
of inquiry, together with copies of any written statements made during it and details of any
26
information, document or thing which the investigating officer was made aware of during the
investigation.
Establishment of board of inquiry
25.
(1)
If it appears from the report of the investigation that the member concerned
may have committed a serious breach of discipline, the Commissioner shall establish a board
of inquiry -
(a)
to determine whether such a breach has been committed by the
member concerned, and
(b)
if so, to recommend to the Commissioner the disciplinary action to be
taken in relation to the member,
and shall notify the member accordingly.
(2)
The board shall consist of 3 persons appointed by the Commissioner.
(3)
A person who has been involved in any capacity in relation to an earlier aspect
of the case may not be so appointed.
27
(4)
One member of the board (who shall preside and is referred to in this Part as
the “presiding officer”) shall be a person selected by the Commissioner from a panel
nominated by the Minister.
(5)
Each person on the panel shall be a judge of the District Court or a practising
barrister, or practising solicitor, of not less than 10 years’ standing.
(6)
One of the other members of the board shall be a member of a rank not below
that of chief superintendent and the other a member of a rank not below that of
superintendent.
Objection to board member
26.
(1)
Not later than 7 days after being notified of the establishment of a board of
inquiry, the member concerned may object in writing to one of the members of the board
referred to in Regulation 25(6).
(2)
Where such an objection is made, the Commissioner shall appoint another
member to the board in place of the member to whom the objection relates.
28
Pre-hearing procedure
27.
(1)
The presiding officer shall notify the member concerned in writing, or cause
the member to be so notified, at least 15 days beforehand of -
(a)
the time, date and place of the hearing,
(b)
the names of the members of the board of inquiry, and
(c)
the provisions of section 123(7),
and shall supply the member, or cause him or her to be supplied, with particulars of the
serious breach of discipline alleged.
(2)
The notification shall be accompanied by a statement of the facts established
by the investigation and of any written statements made during it.
(3)
The presiding officer shall also inform the member concerned in writing, or
cause him or her to be so informed, that he or she -
(a)
may admit or deny the alleged breach,
29
(b)
may accept that any statements in documents supplied to him or her
under paragraph (2) are wholly or partly true, but deny that the facts
stated in them constitute a breach of discipline, or
(c)
may deny the breach of discipline concerned but admit that the facts so
stated constitute another such breach,
(d)
may seek advice from his or her representative association,
(e)
is entitled to be accompanied at the inquiry and to be represented by an
official of that association, by another member of his or her choice or
by a solicitor or barrister at the member’s expense, and
(f)
may make oral submissions to the board of inquiry either in person or
through such an official, member, solicitor or barrister.
(4)
The board of inquiry may require the member concerned to submit in writing
to it, at least 7 days before the hearing, his or her account of the circumstances giving rise to
the alleged breach of discipline.
(5)
Where the member concerned informs the board that he or she is unable to
attend an inquiry owing to ill health, he or she shall provide the board with a certificate to
that effect from a medical practitioner, and the presiding officer may require the member to
30
obtain a further such certificate at the State’s expense from another medical practitioner
nominated by the Chief Medical Officer of the Garda Síochána.
Requirement to give information, etc. to board
28.
(1)
A board of inquiry may -
(a)
require the member concerned or any other person who, in its opinion,
possesses information or possesses or controls a document or thing that
is relevant to the inquiry to give the information or produce the
document or thing to the board, and
(b)
where appropriate, require the member or such other person to attend
the hearing for that purpose.
(2)
A requirement under paragraph (1) shall specify -
(a)
the period within which it is to be complied with by the person, and
(b)
the time, date and place at which the person is to attend to give the
information, or produce the document or thing, concerned.
31
(3)
If a board is of opinion that such a requirement purports to require the person
concerned to give any information, or produce any document or thing, in respect of which he
or she is entitled to claim legal professional privilege, it shall, to that extent, set aside the
requirement or vary or attach conditions to it.
Procedure at hearing
29.
(1)
At a hearing the board of inquiry -
(a)
shall give the member concerned an opportunity to be heard and to
respond to any matters raised,
(b)
may -
(i)
permit any person to give evidence orally or in writing, and
(ii)
ask questions of any person who has given evidence,
and
(c)
shall consider and decide on a request by any person to give evidence
relevant to the proceedings orally or in writing.
32
(2)
In its conduct of the proceedings, the board shall have regard to the right of the
member concerned to challenge and test the evidence of any person.
(3)
The board may adjourn a hearing if it appears to it to be expedient to do so.
(4)
The board may proceed with a hearing in the absence of the member
concerned.
(5)
Subject to these regulations, a board may regulate its own procedure.
(6)
Information at an inquiry shall be given on oath or affirmation, which the
presiding officer may administer or take.
(7)
A verbatim record of the proceedings shall be made by a stenographer or by
electronic or other means.
(8)
An inquiry shall be held in private.
Report of board
30.
(1)
Within 21 days after the conclusion of the inquiry, the presiding officer shall
submit a written report to the Commissioner and forward a copy of the report to the member
concerned.
33
(2)
The report shall include -
(a)
copies of any statements made, including any admission made by the
member concerned and any other documents provided to the board,
together with the verbatim record of the proceedings,
(b)
the determination of the board as to whether the member concerned is
in breach of discipline and, if so, as to the act or conduct constituting
the breach, and
(c)
its recommendation as to any disciplinary action to be taken in respect
of the breach.
(3)
Where there is a difference of opinion among the members of the board
regarding any matter dealt with in its report, only the opinion of the majority regarding that
matter shall be included in the report.
Action by Commissioner on report
31.
(1)
If the board has recommended that disciplinary action should be taken in
respect of a breach of discipline, the Commissioner shall, within 14 days after receipt of the
34
report and subject to paragraph (2), decide on the appropriate disciplinary action (being a
disciplinary action or actions mentioned in Regulation 14(3) or 22) to be so taken.
(2)
If -
(a)
the member concerned is of a rank above that of inspector, and
(b)
the Commissioner considers that the appropriate disciplinary action
should be dismissal, a requirement to retire or resign as an alternative
to dismissal or a reduction in rank,
he or she shall send a recommendation to that effect to the Minister for consideration by the
Government.
(3)
Without prejudice to sections 11 to 13, the disciplinary action that may be
taken by the Government under paragraph (2) may include a reduction in rank.
(4)
The decision or recommendation shall be notified in writing to the member
concerned within 7 days after the date on which the Commissioner decides on the
disciplinary action to be taken or the recommendation to be made.
(5)
This regulation is subject to Regulation 32.
35
Procedure where Commissioner proposes to impose or recommend a more severe
disciplinary action than that recommended
32.
(1)
If the Commissioner proposes to impose or recommend a disciplinary action
which is more severe than that recommended by the board of inquiry, he or she shall notify
the member concerned of the proposal as soon as practicable and request the member to
submit to the Commissioner any comments that he or she may wish to make in relation to the
proposal within 10 days after the date of the notification.
(2)
After the expiration of that period and consideration of any comments made
by the member, the Commissioner shall decide on the disciplinary action to be imposed or
recommended and then proceed in accordance with paragraphs (2) to (4) of Regulation 31.
Appeal by member concerned
33.
(1)
Not later than 7 days after receiving notification of the decision of the
Commissioner on the disciplinary action to be taken or recommended, the member concerned
may give notice of appeal to the Commissioner against -
(a)
the determination of the board of inquiry under Regulation 30(2)(b), or
36
(b)
the disciplinary action decided on or to be recommended by the
Commissioner,
or against both the determination and the disciplinary action or recommendation.
(2)
The notice of appeal sent to the Commissioner shall be in such form as he or
she may from time to time approve.
(3)
The appeal may be based on one or more than one of the following grounds:
(a)
specified provisions of these regulations were not complied with;
(b)
the determination is not justified, having regard to the evidence heard
by the board of inquiry;
(c)
all the relevant facts -
(i)
were not ascertained,
(ii)
were not considered, or
(iii)
were not considered in a reasonable manner;
37
(d)
the member was not given a reasonable opportunity to be heard and to
respond to matters raised;
(e)
the disciplinary action which the Commissioner has decided to take or
recommend is disproportionate in relation to the breach of discipline
concerned.
(4)
If the member does not give notice of appeal within the period mentioned in
paragraph (1), the Commissioner shall proceed to implement or, as the case may be,
recommend to the Minister the disciplinary sanction concerned.
Appeal Board
34.
(1)
The Commissioner shall, as soon as practicable after receiving notice of
appeal from the member concerned, establish a board (in these regulations referred to as an
“Appeal Board”) to hear and determine the appeal and shall transmit the notice of appeal to
it.
(2)
An Appeal Board consists of 3 persons.
(3)
The chairperson of an Appeal Board shall be selected by the Commissioner
from a panel nominated by the Minister.
38
(4)
Each member of the panel shall be a judge of the District Court or a practising
barrister, or practising solicitor, of not less than 10 years’ standing.
(5)
The other members of an Appeal Board shall be -
(a)
either the Commissioner or a member selected by him or her from a
panel consisting of the deputy commissioners and assistant
commissioners, and
(b)
either -
(i)
a member selected by the representative association of which
the member concerned is a member from a panel consisting of
the members of the central executive committee of that
association, or
(ii)
where the member concerned is not a member of a
representative association, a member selected by the
Commissioner.
(6)
A member referred to in paragraph (5) shall not be appointed as a member of
an Appeal Board to consider a case referred to it if he or she has been involved in any
capacity in relation to an earlier aspect of the case.
39
(7)
Subject to these regulations, an Appeal Board shall determine its own
procedure.
Procedure before hearing of appeal
35.
(1)
On receipt of a notice of appeal, an Appeal Board shall as soon as practicable -
(a)
by notice in writing request the member to send to it -
(i)
a written statement of the ground or grounds of the appeal, as
specified in Regulation 33(3), and
(ii)
any other submission that it may request,
in such form and within such period as it may specify, and
(b)
inform the member at least 15 days beforehand of the time, date and
place of the hearing of the appeal.
(2)
An Appeal Board may refuse to consider an appeal where -
40
(a)
the notice of appeal was not given within the period specified in
Regulation 33(1), or
(b)
having considered the member’s statement of the ground or grounds of
appeal, it is of opinion that the case made by the member is frivolous,
vexatious or without substance or foundation.
(3)
The Appeal Board shall inform the Commissioner of any such refusal, and the
Commissioner shall proceed as if the notice of appeal had not been given.
(4)
The member concerned may withdraw the appeal at any time before it is heard
by the Appeal Board by submitting to the Commissioner a notification in writing to that
effect.
(5)
On receiving such a notification the Commissioner shall -
(a)
inform the Appeal Board accordingly, and
(b)
proceed to implement or recommend the disciplinary action decided
on.
41
Proceedings at Appeal Board
36.
(1)
Subject to paragraph (2), an Appeal Board may, at its discretion, invite any
person to give evidence orally or in writing and may grant or refuse a request from any party
to the proceedings so to give evidence to it.
(2)
The member concerned -
(a)
is entitled to be accompanied at the appeal and be represented by an
official of his or her representative association, another member of his
or her choice or a solicitor or barrister at the member’s own expense,
and
(b)
may make oral submissions to the Appeal Board either in person or
through such an official, member, barrister or solicitor.
(3)
Where the Appeal Board is hearing oral submissions, the following persons
may be present:
(a)
the member concerned;
(b)
any person who is entitled to represent the member;
42
(c)
(4)
any other person permitted by the Appeal Board to be present.
The chairperson of an Appeal Board may administer an oath or take an
affirmation.
Decision of Appeal Board
37.
(1)
Where an appeal is against a determination of a board of inquiry, an Appeal
Board may -
(a)
affirm the determination and either -
(i)
affirm the decision of the Commissioner in relation to the
disciplinary action to be taken or recommended, or
(ii)
substitute another disciplinary action of a less serious nature,
(b)
quash the determination and the Commissioner’s decision,
(c)
if -
43
(i)
it decides that the member concerned has not committed the
breach of discipline alleged but has committed another and less
serious breach of discipline,
(ii)
it is satisfied that such a decision would not be unfair to the
member concerned having regard to the fact that the other
breach is not the breach alleged,
quash the determination and decision and substitute another
disciplinary action in respect of that other breach, or
(d)
quash the determination and decision and decide that in the
circumstances of the particular case another board of inquiry should be
established by the Commissioner to determine whether the member
committed a breach of discipline.
(2)
Where an appeal is against a decision of the Commissioner in relation to
disciplinary action, an Appeal Board may -
(a)
affirm the decision, or
(b)
substitute another specified disciplinary action of a less serious nature.
44
(3)
An Appeal Board shall communicate its decision on the appeal and the reasons
for it to the Commissioner and the member concerned within 7 days after the conclusion of
the hearing.
(4)
Where the decision of an Appeal Board is not unanimous, only the decision of
the majority of its members shall be communicated under paragraph (3).
(5)
The Commissioner shall implement the decision of the Appeal Board within 7
days after that decision is communicated to him or her.
(6)
Where the decision of the Appeal Board is that a member above the rank of
inspector should be dismissed, required to retire or resign as an alternative to dismissal, or
reduced in rank, the Commissioner shall communicate the decision to the Minister for
consideration by the Government.
(7)
In this regulation, “less serious breach of discipline” means a breach of
discipline which in the opinion of the Appeal Board is one which in the circumstances of the
particular case merits disciplinary action of a less serious nature than that warranted by the
breach alleged.
45
Absence of member concerned
38.
Where -
(a)
the member concerned, without reasonable excuse, does not attend a
hearing of a board of inquiry or an Appeal Board, and
(b)
compliance by the board or Appeal Board with any provision of these
regulations is therefore not possible,
the board of inquiry or Appeal Board may, notwithstanding such non-compliance, proceed in
all respects in the member’s absence if satisfied that to do so is reasonable in the
circumstances.
46
PART 4
SUMMARY DISMISSAL
Summary dismissal of member
39.
(1)
Notwithstanding anything in these regulations and without prejudice to section
14(2), the Commissioner may, subject to this regulation, dismiss from the Garda Síochána
any member (not being above the rank of inspector) whom he or she considers unfit for
retention in the Garda Síochána.
(2)
The power of dismissal conferred by this regulation shall not be exercised
except where -
(a)
the Commissioner is not in any doubt as to the material facts and the
relevant breach of discipline is of such gravity that the Commissioner
has decided that the facts and the breach merit dismissal and that the
holding of an inquiry under these regulations could not affect his or her
decision in the matter,
(b)
subject to paragraph (3), disclosure of the facts relating to the breach
would, in the opinion of the Commissioner, be liable to affect the
security of the State or to constitute a serious and unjustifiable
infringement of the rights of another person, or
47
(c)
the member concerned has failed to attend for duty over such a period
and in such circumstances that it can be presumed that his or her
intention has been to abandon his or her membership of the Garda
Síochána.
(3)
In a case referred to in paragraph (2)(b), the Commissioner shall consider
whether, in the interests of the member concerned, some special inquiry can be held into the
relevant breach of discipline which would not affect the security of the State or constitute a
serious and unjustifiable infringement of the rights of another person.
(4)
The power of dismissal conferred by this regulation shall not be exercised -
(a)
where the member concerned has completed his or her period of
probation, without the consent of the Minister,
(b)
where paragraph 2(a) applies, without the member concerned being
informed of the material facts and the relevant breach of discipline, and
(c)
except where paragraph 2(c) applies or where, despite reasonable
efforts to do so, the whereabouts of the member concerned have not
been established, without the member being given an opportunity of
submitting to the Commissioner reasons against the proposed
dismissal.
48
PART 5
COMPLAINTS REFERRED TO COMMISSIONER BY GARDA SÍOCHÁNA OMBUDSMAN COMMISSION
Definitions (Part 5)
40.
In this Part -
“Commission” means the Garda Síochána Ombudsman Commission;
“complaint” means a complaint determined by the Commission under section 87 to be
admissible;
Complaint referred by Commission for unsupervised investigation
41.
(1)
This regulation applies where -
(a)
a complaint is referred by the Commission under section 92(a) to the
Commissioner, and
(b)
(2)
the Commission does not supervise the investigation.
Where this regulation applies, the Commissioner shall appoint a member
under Regulation 14 or, as appropriate, Regulation 23 to investigate the complaint, and Part 2
or, as the case may be, Part 3 shall apply in relation to the investigation and any further
49
proceedings under the Part concerned, with the modification that a member so appointed is
deemed to be a deciding officer or, as the case may be, an investigating officer and with any
other necessary modifications.
(3)
An appointment under paragraph (2) is subject to the prior approval of the
Commission, if so required by it.
(4)
The Commissioner shall inform the Commission, the complainant and the
member concerned of -
(a)
the results of any disciplinary proceedings instituted following the
investigation or, if no such proceedings are instituted, of the results of
the investigation, and
(b)
if appropriate, any action that the Commissioner proposes to take in
relation to the member.
Complaint referred by Commission for supervised investigation
42.
(1)
This regulation applies where -
(a)
a complaint is referred by the Commission for investigation under
section 92(a) to the Commissioner, and
50
(b)
(2)
the Commission has decided to supervise the investigation.
Where this regulation applies, the Commissioner shall appoint a member
under Regulation 14 or, as appropriate, Regulation 23 to investigate the complaint, and for
this purpose Regulations 14 to 18 or 23 and 24 apply accordingly, with the modification that
a member so appointed is deemed to be a deciding officer or investigating officer, as the case
may be, and with any other necessary modifications.
(3)
An appointment under paragraph (2) is subject to the prior approval of the
Commission, if so required by it.
(4)
The appointed member shall -
(a)
comply with any requirement or direction of, or arrangement by, the
Commission under section 94(5),
(b)
submit to the Commission the report prepared by him or her under
Regulation 18 or 24, together with copies of any written statements
made during the investigation, and
(c)
submit a copy of the report and of any accompanying documents to the
Commissioner.
51
(5)
The report shall, in particular, include a statement of the facts established by
the investigation.
Review by Commissioner of unsupervised investigation
43.
At the request of the Commission under section 94(11)(a) to review an unsupervised
investigation, the Commissioner -
(a)
shall cause the review to be undertaken, and
(b)
on the conclusion of the review, shall report to the Commission
concerning any further action that he or she proposes to take in the
matter.
Taking over of investigation by Ombudsman Commission
44.
Nothing in these regulations prevents the Commission from deciding at any time to
take over the investigation of a complaint referred by it to the Commissioner.
52
Recommendation by Commission under section 97 (less serious breach of discipline)
45.
(1)
This regulation applies where -
(a)
the Commission, on the conclusion of a supervised investigation under
Regulations 14 to 18 or of its own investigation under section 95,
makes a report to the Commissioner under section 97 which includes a
recommendation relating to disciplinary action to be taken against a
member under these regulations, and
(b)
a member designated by the Commissioner decides, on the basis of the
statement of the facts established by the investigation and included in
the report -
(i)
that the member is in breach of discipline and may be subject to
one of the disciplinary sanctions mentioned in Regulation
14(3), and
(ii)
that a specified one of those disciplinary sanctions should be
imposed.
(2)
Where this regulation applies, the member so designated shall send a notice to
the member concerned -
53
(a)
conveying his or her decision,
(b)
enclosing a copy of the report, and
(c)
informing the member that he or she may apply to the Commissioner
in writing to review the decision within 7 days after receiving the
notice.
(3)
The Commissioner may extend the period specified in paragraph (2)(c) if
satisfied that it is appropriate to do so.
(4)
The review shall be conducted by the Commissioner as if it had been applied
for by the member concerned after receiving a deciding officer’s report under Regulation
19(1), and for that purpose paragraphs (2), (3) and (5) of Regulation 19 and Regulation 20
shall apply in relation to the review, with the necessary modifications.
Recommendation by Commission under section 97 (serious breach of discipline)
46.
(1)
This regulation applies where -
(a)
the Commission, on the conclusion of a supervised investigation under
Regulations 23 and 24 or of its own investigation under section 95,
makes a report to the Commissioner under section 97 which includes a
54
recommendation that disciplinary proceedings should be instituted
against the member concerned under these regulations, and
(b)
it appears to the Commissioner, having regard to the statement of the
facts established by the investigation and included in the report, that
the member may have been in breach of discipline and may be subject
to one of the disciplinary sanctions mentioned in Regulation 22.
(2)
Where this regulation applies, the Commissioner shall -
(a)
establish a board of inquiry to determine whether a breach of discipline
has been committed by the member concerned, and
(b)
if so, to recommend to the Commissioner the disciplinary action to be
taken in relation to the member,
and for this purpose Regulations 25 to 38 apply in relation to the disciplinary proceedings
against the member, with the modification that a copy of the report of the Commission shall
accompany the notification to the member concerned under Regulation 27(2) and with any
other necessary modifications.
55
Commission to be informed of outcome of disciplinary proceedings
47.
The Commissioner shall notify the Commission of the outcome of any disciplinary
proceedings taken after receiving a report from the Commission under section 97 and of any
disciplinary sanction imposed on the member concerned.
56
PART 6
MISCELLANEOUS
Breach of discipline at Garda Training College by member on probation.
48.
(1)
Notwithstanding anything in these regulations, the Chief Superintendent in
Charge at the Garda Training College (or, if he or she is absent, the member acting on his or
her behalf) may deal with a breach of discipline by a member attending the College who has
not completed the period of probation.
(2)
The Chief Superintendent (or other member so acting on his or her behalf)
shall ensure that when dealing with a breach of discipline under this regulation the member
concerned is informed in sufficient detail of the nature of the breach to enable him or her to
understand fully what is alleged and to give any explanation or make any statement in
relation to the matter.
(3)
Disciplinary action taken under this regulation against a member found to be
in breach of discipline shall consist of a reduction in pay not exceeding one week’s pay or a
reprimand, warning, caution or advice and shall be notified to the Commissioner without
delay.
(4)
The member concerned may apply to the Commissioner to review the
disciplinary action.
57
(5)
On the review the Commissioner shall affirm or set aside the disciplinary
action or set it aside and substitute any other disciplinary action specified in paragraph (3).
Material to be transmitted to Chief Constable of PSNI under section 56(3)
49.
(1)
This regulation applies where a member of the Police Service of Northern
Ireland who has been appointed to a rank in the Garda Síochána under section 53(1) has been
the subject of disciplinary proceedings.
(2)
Where this regulation applies, the material to be transmitted by the
Commissioner under section 56(3) to the Chief Constable of the Police Service of Northern
Ireland shall consist of the documentation in the Commissioner’s possession relating to the
member and arising out of the investigation and any subsequent proceedings, including any
proceedings before a board of inquiry or an Appeal Board.
Extension of time
50.
Any time limit provided for by these regulations for the doing of anything by the
member concerned may be extended by the Commissioner or, where appropriate, by the
Appeal Board if the Commissioner or Appeal Board is satisfied that an extension is justified.
58
Revocation
51.
The Garda Síochána (Discipline) Regulations 1989 are hereby revoked.
59
Regulation 5
SCHEDULE
ACTS OR CONDUCT CONSTITUTING BREACHES OF DISCIPLINE
1.
Discreditable conduct, that is to say, conducting himself or herself 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 Síochána.
2.
Discourtesy, that is to say, failing to behave with due courtesy towards a member of
the public.
3.
4.
Misconduct towards a member, that is to say -
(a)
assaulting the member,
(b)
oppressive or insubordinate conduct towards the member, or
(c)
using abusive or insulting language to him or her.
Neglect of duty, that is to say, without good and sufficient cause -
(a)
failing or neglecting -
60
(i)
properly to account for any money or property received by him
or her in his or her capacity as a member, or
(ii)
promptly to carry out any lawful order or to do any other thing
which it is his or her duty to do,
or
(b)
doing anything mentioned in subparagraph (a)(ii) in a negligent
manner.
5.
Disobedience of orders, that is to say, wilfully disobeying any lawful order, whether
written or oral, without good and sufficient cause.
6.
Falsehood or prevarication, that is to say, in his or her capacity as a member -
(a)
making or procuring the making of -
(i)
any oral or written statement, or
(ii)
any entry in an official document or record,
61
that, to the member’s knowledge, is false or misleading,
or
(b)
7.
(a)
with a view to deceiving any person -
(i)
destroying or mutilating any official document or record, or
(ii)
altering or erasing or adding to any entry in it.
Breach of confidence, that is to say, making an unauthorised
communication in relation to any information which comes to the
member’s knowledge in the course of his or her duties and was not
available to members of the public.
(b)
In subparagraph (a), “unauthorised communication” means any
communication other that a communication made in the execution of
his or her duties or authorised by the Commissioner.
8.
Corrupt or improper practice, that is to say -
(a)
soliciting or receiving as a member and without the consent of the
Commissioner any gratuity, present, subscription or testimonial (other
62
than from customary collections for such purposes as presentations on
the occasion of transfer, marriage or retirement),
(b)
placing himself or herself as a member under a pecuniary obligation to
any person in a manner that might affect the member’s ability to
discharge his or her duties as a member,
(c)
improperly using (or attempting to use) his or her position as a member
for his or her private advantage,
(d)
writing or giving, otherwise than in accordance with conditions
specified from time to time by the Commissioner, any testimonial of
character or other recommendation with the object of supporting an
application for a licence or certificate relating to intoxicating liquor,
betting or gaming,
(e)
failing wilfully and without good and sufficient cause to pay any
lawful debt in such circumstances as to be liable to affect his or her
ability to discharge his or her duties as a member or as to be liable to
compromise other members, or
(f)
signing or circulating a petition or statement relating to matters
affecting the Garda Síochána other than a petition or statement
63
presented or intended to be presented to his or her superiors either
directly or through a representative association.
9.
Abuse of authority, that is to say, oppressive conduct towards a member of the public,
including -
(a)
without good and sufficient cause, making an arrest, or
(b)
using unnecessary violence towards any person with whom the
member is brought into contact in the execution, or purported
execution, of his or her duties.
10.
Neglect of health by a member, that is to say -
(a)
any culpable act or conduct which occurs while the member is absent
from duty because of sickness and which is calculated to delay his or
her return to duty,
(b)
while so absent from duty, failing, refusing or neglecting to carry out
any direction of the Commissioner based on information received by
him or her from the Chief Medical Officer of the Garda Síochána, or
64
(c)
dishonestly absenting himself or herself from duty on grounds of
illness.
11.
Untidiness on duty or in uniform, that is to say, without good and sufficient cause,
being untidy in appearance while on duty or while not on duty but wearing uniform in a
public place.
12.
Misuse of money or other property belonging to a member of the public that is in the
custody of the Garda Síochána, that is to say, misappropriating or wilfully or carelessly
misusing, wasting, losing or damaging any such money or other property or failing, without
good and sufficient cause, to report any such misuse, waste, loss or damage.
13.
Intoxication, that is to say, owing to the effects of intoxicating liquor or other drugs or
a combination thereof, being unfit for duty either while on duty or while not on duty but
wearing a uniform in a public place.
14.
Drinking on duty, that is to say, without good and sufficient cause, drinking
intoxicating liquor while on duty.
15.
Unauthorised entry to licensed premises, that is to say, without good and sufficient
cause while on duty or while not on duty but wearing uniform, entering any premises in
respect of which a licence or permit is in force, or which are registered, for a purpose relating
to intoxicating liquor, betting or gaming.
65
16.
Prohibited spare-time activity, that is to say -
(a)
identifying himself or herself actively or publicly with a political party,
(b)
behaving in relation to political matters in such a manner and in such
circumstances as to give rise to reasonable apprehension among
members of the public in relation to his or her impartiality in the
discharge of his or her duties, or
(c)
engaging (whether for reward or otherwise) in any activity which,
though not mentioned in subparagraph (a) or (b), is prohibited by the
Commissioner (by either general or special directive) as being -
(i)
likely to interfere with the proper discharge of his or her duties,
or
(ii)
likely to give rise to reasonable apprehension among members
of the public in relation to his or her impartiality in the
discharge of those duties, or
(iii)
for good and stated reasons, inappropriate for members to
engage in.
66
17.
Criminal conduct, that is to say, conduct constituting an offence in respect of which
there has been a conviction by a court.
18.
Failure to comply with a direction under section 39 by a member of higher rank to
account for any act done while on duty where that member has informed the member
concerned that such failure may lead to dismissal from the Garda Síochána.
19.
Failure to comply with any specified provision of any code of ethics established under
section 17 of the Act.
20.
Failure to co-operate with an investigation under the law and procedure referred to in
section 55(2)(a).
21.
An act done by a member while on secondment to the Police Service of Northern
Ireland which, if done by a member of that Service, could be the subject of disciplinary action
by the authorities in Northern Ireland.
22.
Failure, without reasonable excuse, to co-operate with an investigation conducted
under the Act or these regulations or with a board of inquiry established under Regulation 25.
23.
Failure to comply with paragraph (a) or (b) of Regulation 12.
67
24.
Failure to co-operate with a search under section 99 of a Garda Síochána station.
25.
Obstruction, that is to say, doing any act which obstructs the operation of these
regulations or the operation or implementation of any official policy, directions or
instructions.
26.
Abuse of official communications, that is to say, using e-mail or other internet
procedures contrary to official policy.
27.
Accessory to a breach of discipline, that is to say, conniving at, or knowingly being an
accessory to, a breach of discipline.
28.
Failure to comply with a requirement under section 42(4).
29.
Harassment or intimidation of a confidential reporter within the meaning of the Garda
Síochána (Confidential Reporting of Corruption and Malpractice) Regulations 2007 (S.I. No.
168 of 2007).
68
30.
Making a false allegation of corruption or malpractice within the Garda Síochána
otherwise than in good faith, as provided for in Regulation 14(3) of the said Regulations of
2007.
The Government hereby approve of the making of the foregoing regulations.
GIVEN under the Official Seal of the Government,
this 2nd day of May 2007.
L.S.
BERTIE AHERN
Taoiseach
GIVEN under my Official Seal,
this 2nd day of May 2007.
L.S.
MICHAEL MCDOWELL
Minister for Justice,
Equality and Law Reform
69