Harrison v Commissioner of An Garda Síochána

AN CHÚIRT ACHOMHAIRC THE COURT OF APPEAL APPROVED – NO REDACTION NEEDED Court of Appeal Record Number: 2025 196 High Court Record Number: 2024 171 JR Neutral Citation Number: [2026] IECA 36 Faherty J. O’Moore J. Collins J. BETWEEN/ KEITH HARRISON APPELLANT/APPLICANT - AND - THE COMMISSIONER OF AN GARDA SÍOCHÁNA RESPONDENT JUDGMENT of Mr. Justice Anthony M. Collins delivered on the 13th day of March 2026 -1- I. Factual Background 1. On 4 February 2021, the appellant was served with a Notice of Investigation pursuant to Reg. 24 of the Garda Síochána (Discipline) Regulations 2007 (S.I. No. 214 of 2007, hereafter ‘the Regulations’). The Notice alleged that, after having received a criminal complaint from A.B., he engaged in a sexual relationship with her that led to the birth of a child. It represented that the appellant’s conduct in those circumstances was inappropriate and contrary to his professional duty of care, as a member of An Garda Síochána, to a vulnerable victim of a crime reported to him, and was discreditable in that he knew or ought to have known that it was prejudicial to discipline and/or reasonably likely to bring discredit to An Garda Síochána. 2. On 2 March 2021, the appellant was served with a second Notice of Investigation under Reg. 24 of the Regulations. This alleged that he engaged in discreditable conduct by accepting monies in the form of loans from A.B. at a time when he was involved in, or associated with, the receipt and investigation of a criminal complaint that she had made. 3. On that same date, Asst. Commissioner Clavin suspended the appellant from duty until 1 May 2021 pursuant to Reg. 7 of the Regulations. That suspension was stated to arise from the allegations contained in the Notices of Investigation of 4 February and 2 March 2021 respectively. On a further six occasions, Asst. Commissioner Clavin suspended the appellant from duty for the same reasons, which periods ended on 1 November 2022. 4. On 14 September 2022, the appellant was served with a third Notice of Investigation, in which it was alleged that he had sought out -2- C.D., of whose behaviour A.B. had complained to the appellant, and engaged with him in an attempt to cause harm to A.B., provided advice of a legal nature to C.D. and communicated with C.D. in such a manner as to potentially undermine public confidence in An Garda Síochána were that information to enter the public domain. 5. On 1 November 2022, Asst. Commissioner Roberts suspended the appellant from duty until 1 February 2023 for the same two reasons as had been provided to him in respect of his earlier suspensions. That suspension continued until 1 May 2023. On 31 March 2023, the appellant was informed that the facts disclosed in the allegation contained in the second Notice of Investigation did not warrant the establishment of a Board of Inquiry and that there was no evidence to support the conduct alleged against him. On 1 May 2023, Asst. Commissioner Roberts suspended the appellant from duty until 1 August 2023, on this occasion by reference to the allegation contained in the first Notice of Investigation. The appellant’s suspension on that same ground was renewed at three monthly intervals with effect until 1 February 2024. 6. Meanwhile, on 4 May 2023, in the exercise of his powers under Reg. 25 of the Regulations, the respondent established a Board of Inquiry. By notice dated 7 July 2023, the Presiding Officer of the Board served on the appellant particulars of four allegations of discreditable conduct against him. The Board of Inquiry convened remotely on 21 July 2023 to ascertain the appellant’s attitude to those allegations and to consider a request on his behalf to access thirteen categories of documentation in advance of hearing the substantive allegations. -3- 7. By letter of 28 July 2023, the Board of Inquiry informed the appellant’s solicitor of its decision to refuse the request to access the categories of documents sought and the reasons for that refusal. The letter represented that the appellant “…will be entitled to cross-examine the witnesses who will be required to give evidence and it is understood that this will include [A.B. and C.D.].” 8. The Board of Inquiry convened on 20 November 2023 to hear the allegations against the appellant and the evidence in support thereof. The particulars of the serious breaches of discipline against the appellant were read to him and he rejected each of them. The Presiding Officer proposed that A.B. be called, that her written statements be read into the record of the inquiry and she would then be made available for questions from the Board and for cross-examination by the appellant’s counsel. 9. Counsel for the appellant objected to this procedure on the ground that since A.B. was present she should give her evidence in chief. Having risen to consider the matter, the Board of Inquiry ruled that the facts and information A.B. had provided in the six or seven statements that she had made in the course of the investigations into the alleged breaches of discipline were both necessary and relevant to the Board of Inquiry’s task. It accordingly expressed its intention to proceed in the manner it had proposed. Counsel for the appellant took strenuous objection to this procedure. 10. A.B. and the Presenting Officer were both sworn in. In the course of attempts to identify the statements that it was proposed to read into the record, Counsel for the appellant repeatedly objected that he was -4- being expected to cross-examine A.B. on the basis of statements taken from her having been put into direct evidence without his client having had access to the notes made in the preparation of those statements. The statements having been identified, Counsel for the appellant applied to the Board of Inquiry for copies of the notes of interview in respect of each of those statements. The Presiding Officer declined that request on the basis that it appeared to amount to a fishing expedition. Counsel for the appellant requested, and obtained, an adjournment of the inquiry to allow his client to commence these judicial review proceedings. 11. On 29 January 2024, Asst. Commissioner Roberts suspended the appellant from duty until 1 May 2024. That suspension was said to arise from the allegation in the first Notice of Investigation, that he had had inappropriate contact and attempted to interfere with family law related matters involving A.B. and C.D., and that a Board of Inquiry had been established with regard to all of those matters. 12. On 11 March 2024, the High Court (Hyland J.) granted the appellant leave to commence these proceedings by reference to an amended Statement of Grounds. On 1 May 2024 the appellant’s suspension was renewed until 1 August 2024, the justification for which was the matters set out at para. 11, above, together with the initiation of these judicial review proceedings. II. Scope of the Appeal 13. This is an appeal against the judgment and order of the High Court (Simons J. [2025] IEHC 303), respectively delivered on 29 May 2025 and made on 19 June 2025, whereby it dismissed the application for judicial review and awarded the respondent the costs of that proceeding. -5- The Notice of Appeal lodged in the Office on 21 July 2025 contains no less than twenty-two grounds. Paragraph 24 of the written submissions filed in the Office on 10 November 2025 on the appellant’s behalf identifies six points in the appeal, namely that the learned High Court Judge erred: - in finding that the belated disclosure of the decision made on 3 June 2020 not to pursue a criminal prosecution did not represent such a significant change in circumstances as to trigger a requirement to notify the appellant and to invite specific submissions on the implications thereof for his suspension; - in holding that because the appellant knew the nature of the allegations against him, he must be taken to know the reasons for the decision to suspend him; - in failing to find that the reasons and materials tendered by the respondent for the appellant’s ongoing suspension were inadequate; - in law in finding that the challenge to the procedure that the Board of Inquiry proposed to adopt was premature and in holding that part of the appellant’s case was out of time; - in failing to presume that, in the absence of disclosure by the respondent of the materials relied upon in taking decisions to suspend and to review the suspension, that there was no such material; and - in finding the witness statement of 22 April 2021 was not a significant factor in undermining the appellant’s continued suspension. -6- III. The Appeal 14. Opening the appeal on 18 December 2025, Counsel for the appellant represented that it engaged two issues: (a) the legality of his suspension from duty and (b) the fairness of the procedures before the Board of Inquiry which latter included (c) whether the inquiry ought to have proceeded in light of A.B.’s retraction of her criminal complaint against C.D. (a) Suspension from Duty 15. The appellant claims the High Court conflated the fact that he knew he was under investigation in respect of certain allegations with his entitlement to a sufficiently reasoned decision setting out why his suspension was merited or necessary. He refers to the six primary considerations, including strength of evidence, seriousness of allegation and risk to members of the public, and seven secondary considerations, that appear in the respondent’s Suspension Policy. In a review of an ongoing suspension the respondent must address each of these considerations and show how he has done so in the reasons for any continuation thereof. The Notices of Suspension merely recited the existence of allegations. They did not show that the respondent had re- engaged with the justification for suspension on each occasion when that issue fell to be determined. The necessity for that exercise was all the greater since A.B. had withdrawn the criminal complaint against C.D. the appellant had received, thereby reducing the seriousness of the alleged breach of the duty of care that a member of An Garda Síochána owes to a vulnerable victim of crime. The reasons given failed to “move into the middle ground”, as Clarke C.J. required of decision-makers in Connelly v. An Bord Pleanála [2021] 2 I.R. 752, 779-780. They did not, moreover, engage with the lengthy duration of the suspension, -7- exacerbated by the respondent’s unexplained delays in progressing the various disciplinary investigations. 16. Paragraph 4(vi) and (vii) of the Notice of Appeal invites this Court to make orders of, respectively, certiorari to quash “the current extension” of the appellant’s suspension and prohibition to restrain his further suspension. Whilst not ignoring the context in which those reliefs are sought, this Court is not asked to quash the numerous decisions to suspend the appellant from duty that the respondent has made since 2 March 2021. Whilst the appellant criticises the finding at para. 35 of the judgment under appeal that each of the three-monthly decisions to renew the suspension were reasonable and rational in the administrative law sense, the basis upon which the appellant urges this Court to declare “the current extension” unlawful is that it did not contain reasons and/or fails to respect the respondent’s Suspension Policy, and not that that extension is either unreasonable or irrational. 17. That approach is logical in that if the appellant does not know the reasons for a decision affecting his legal position, he cannot be expected to put forward reasons why that decision is unlawful. In Connelly v. An Bord Pleanála [2021] 2 I.R. 752, 767-768, Clarke C.J. explained the purpose of the requirement for decision-makers to give reasons in the following terms: …, it seems to me that it is possible to identify two separate but closely related requirements regarding the adequacy of any reasons given by a decision-maker. First, any person affected by a decision is at least entitled to know in general terms why the decision was made. This requirement derives from the obligation to be fair to individuals affected by binding decisions and also contributes to transparency. Second, a person is entitled to have enough information to consider whether they can or should seek to avail of any appeal or to bring judicial -8- review of a decision. Closely related to this latter requirement, it also appears from the case law that the reasons provided must be such as to allow a court hearing an appeal from or reviewing a decision to actually engage properly in such an appeal or review. However, in identifying this general approach, it must be emphasised that its application will vary greatly from case to case as a result of the various criteria identified above which might distinguish one decision, or decision-making process, from another. 18. It is clear the appellant was provided with the reasons for each of the three month suspensions from duty, including that which he now seeks to have quashed. The latter is said to arise from the allegations pending before the Board of Inquiry, the establishment of that Board of Inquiry and the initiation of these proceedings. In the context of An Garda Síochána disciplinary proceedings, this Court (per O’Moore J.) recently held at para. 30 of its judgment in Baynham v. Commissioner of An Garda Síochána & Ors. [2025] IECA 194 that: It is quite possible for the seriousness of an allegation alone to form the basis for a suspension of an officer. Of course, other considerations may, and arguably must, be taken into account. However, an allegation that an officer has been involved in the inappropriate interference in the administration of penalty notices over almost a two-year period, and that the same officer had received a “gift” as a reward for the alleged inappropriate interference in such notices, can in itself form sufficient reason for that Garda’s suspension. 19. The appellant has failed to undermine the findings at paras. 37 to 39 of the judgment under appeal to the effect that he has at all times been provided with an adequate explanation of the reasons for his suspension, to wit, that he is under investigation for alleged serious breaches of discipline as a result of which a Board of Inquiry has been -9- established. The appellant knows precisely what is alleged against him in the form of particulars of the serious breaches of discipline alleged and has been served with a number of statements recording the events alleged to constitute those breaches. The appellant may disagree with the Assistant Commissioner’s view that it is a serious breach of discipline for a Garda to enter into a sexual relationship with a person making a complaint of domestic abuse. He cannot sensibly say he does not understand why his suspension has continued throughout the duration of the disciplinary process. 20. As for the appellant’s argument that he enjoyed a species of legitimate expectation that the respondent would adhere to the Suspension Policy, no trace of that plea is to be found either in the Amended Statement of Grounds or in the Notice of Appeal. It is thus no surprise that the judgment under appeal is equally silent on that point. Contrary to what is put forward on the appellant’s behalf, a party who asserts that s/he has not obtained the benefit of procedures laid down by a public authority must raise that issue in its pleadings. Counsel for the appellant appears to claim that because the decisions do not refer to the Suspension Policy he cannot know whether it was applied to his circumstances and is therefore exempt from making that argument at the outset of his proceedings. That contention sits oddly with the assertion of a legitimate expectation, which usually requires the communication of a representation and reliance thereon, both issues of fact which are to be proved in the normal way by the party who asserts their existence. 21. The appellant has not, in any event, demonstrated that the reasons provided in the decision to suspend him did not in fact address both the - 10 - primary and secondary considerations that the Suspension Policy requires a review of a decision to suspend a member of An Garda Síochána from duty to take into account. The assessment of considerations such as the strength of case, seriousness of allegation, potential to pervert the course of justice and impact on police/public relations, amongst others, and the respective weight to be given to each in carrying out a review are ultimately matters for the respondent to decide. On their face, the decisions show that the respondent is of the view that the appellant is to be suspended from duty until the veracity of the serious allegations made against him has been determined. That is sufficient compliance with the requirement to give reasons, it being well established that that obligation is neither a box ticking exercise nor does it always require a decision-maker to score each of the factors that may or may not have been taken into account in reaching a decision: see the passage from Baynham cited at para. 18, above, and the judgment of Fennelly J. in Mallak v. Minister for Justice, Equality & Law Reform [2012] 3 I.R. 297, 322 where he observed that: …it is not easy to conceive of a decision maker being dispensed from giving an explanation either of the decision or of the decision making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded. 22. The submissions that the reasons furnished did not engage with the duration of the suspension, exacerbated by an allegedly unexplained delay in progressing the various disciplinary investigations, are answered by the findings of fact at para. 40 of the judgment under - 11 - appeal that the appellant did not object to the disciplinary process being deferred pending the outcome of the criminal investigations and that the disciplinary process proceeded with reasonable expedition thereafter. 23. For these reasons, I affirm the High Court judgment and dismiss the appeal under this heading. (b) Procedures before the Board of Inquiry 24. The Notice of Appeal and the written submissions filed on the appellant’s behalf contain what are at times diffuse complaints about the fairness of the procedures before the Board of Inquiry. Without abandoning these contentions, the hearing of the appeal under this heading focussed on paras. 3(10), (12) and (13) of the Notice of Appeal, namely the appellant’s right to challenge and test the evidence of any person, the irregularity and unfairness of the Board of Inquiry proposing to have a witness statement read into evidence without permitting the appellant to have sight of the notes of interview from which the said statement resulted, and the finding that the application for judicial review was premature. 25. Paragraph 43 of the judgment under appeal cites Rowland v. An Post [2017] 1 I.R. 355 as authority for the proposition that the High Court should intervene in the course of the disciplinary process only where it is clear that that process has gone irretrievably wrong and it is more or less inevitable that any adverse finding reached at its conclusion would be legally unsustainable. Paragraph 44 of that judgment proceeds to hold that the circumstances of this case did not reach that threshold and that, whereas the procedure the Board of Inquiry proposed to adopt might be considered unusual, it was not - 12 - inherently unfair. At paras. 46 to 48, the judgment under appeal accepts that whilst the proposal to read into the record the written statements A.B. supposedly made prior to receiving her oral testimony is unusual, the submission that it is never permissible to adduce written statements in circumstances where a witness is available to give oral testimony is incorrect as a matter of law. Paragraph 49 of the judgment under appeal then states that: There is no “bright line” rule which precludes a Board of Inquiry from ever admitting witness statements. Rather, the touchstone against which the procedures of a Board of Inquiry must be assessed is whether proper regard has been had to “the right of the member concerned to challenge and test the evidence of any person” (regulation 29(7)). It is simply not possible to know at this remove whether the proposed procedure would have breached this requirement. This is because the Applicant moved for judicial review precipitously and without waiting to see how the oral hearing would evolve. It is not possible to say, therefore, what the run of the evidence might have been. 26. Whilst I subscribe to this admirably clear identification of the touchstone against which the Board of Inquiry’s procedures fall to be assessed, with some regret I demur as to the High Court’s application of that yardstick to the issue Counsel for the appellant emphasised at the hearing of the appeal. The point this Court is invited to address is not so much the procedure to admit A.B.’s statements in the manner the Board of Inquiry proposed, but rather its unequivocal ruling, described at para. 10, above, to refuse the appellant access to the notes of interview in respect of each of the statements that it proposed be read into the record to permit the cross-examination of both A.B. and the Presenting Officer. - 13 - 27. The Board of Inquiry may be entitled to adopt what the parties accept is a somewhat unusual procedure to receive A.B.’s direct evidence by reading the statements the Presenting Officer had taken down from her. The effective exercise of the appellant’s undoubted right to challenge and to test that evidence by way of the cross- examination of A.B. and/or the Presenting Officer required that he be afforded access to whatever notes, drafts or other material had been generated in the process that led to the creation of those statements. The requirement to afford the appellant that access was all the greater in a context where it appears that, prior to the hearing of 20 November 2023, he had been unaware that A.B.’s direct evidence would be given in the manner the Board of Inquiry ultimately directed. The request for these materials thus is not to be confused with the earlier requests for documentation to which the Board of Inquiry had declined to accede by letter of 28 July 2023. Given the purpose of the request made in the unusual circumstances that arose at the hearing of 20 November 2023, it could neither be described as a fishing expedition nor dismissed as a collateral attack on the letter of 28 July 2023. 28. Can the process under challenge be said to have gone irretrievably wrong so as to justify the intervention of the High Court? The transcript of the hearing of 20 November 2023 is clear: the Board of Inquiry made an unequivocal ruling to decline the appellant’s request for copies of the notes of interview in respect of each of A.B.’s statements. The illustrations of what could go wrong at a disciplinary inquiry that Clarke J. described in Rowland v. An Post [2017] 1 I.R. 355, 369 are, in this context, instructive: “[i]t might,…, have been the case that insufficient information would have actually been given to Mr Rowland to meet the requirements of fair process. It might have been that the exercise of the - 14 - discretion to allow or refuse examination of witnesses might have been impermissibly exercised so as to exclude questioning which would have been necessary to reach a sustainable decision.” It is very difficult to see how the appellant’s right to challenge and to test the evidence of A.B. and the Presenting Officer by way of cross-examination would have been vindicated had the hearing proceeded in the manner the Board of Inquiry envisaged. Given the centrality of A.B.’s testimony to the issues that the inquiry was established to decide, the appellant has established, on the balance of probabilities, that, by declining his application for copies of the notes of interview in respect of each of A.B.’s statements, the Board of Inquiry placed itself in a position where there was at least a grave risk, if not a certainty, that it would have arrived at a legally unsustainable decision, thereby justifying the High Court’s intervention at this juncture. 29. On those grounds I propose to allow the appeal under this heading. (c) Retraction of A.B.’s Criminal Complaint 30. Whilst the issue took up even less time than Counsel for the appellant anticipated on opening the appeal, consideration must also be given to the submission that the inquiry ought not to have proceeded in light of A.B.’s retraction of her criminal complaint against C.D. The appellant claims that the allegation in the first Notice of Investigation depends upon the characterisation of A.B. as a vulnerable victim of crime, giving rise to a power imbalance and therefore the existence of inappropriate conduct between him and A.B. The appellant asserts that A.B.’s retraction of the criminal complaint that she had reported to him altered the nature and the substance of those allegations in a fundamental sense. At a minimum, fair procedures required that he - 15 - ought to have been informed of the withdrawal of her complaint in sufficient time to have enabled him to make submissions as to the sustainability of the disciplinary procedure and the lifting of his suspension. 31. Paragraphs 32 to 34 of the judgment under appeal address this issue. The decision not to prosecute did not materially affect any assessment of the seriousness of the alleged breach of discipline, which is that it is contrary to the professional duty of care of a member of An Garda Síochána to engage in a sexual relationship with a person who has made a complaint of domestic abuse to that Garda. The alleged breach is directed at the power dynamic between a person who makes a complaint of domestic abuse and the Garda to whom that complaint is made. That professional duty is owed to a person at the time they report an alleged crime. It is not contingent on the success of any criminal prosecution that might ensue thereafter. The fact there is to be no criminal prosecution in respect of the alleged domestic abuse is of no consequence to the outcome of the alleged breach of discipline. 32. I therefore have no hesitation in agreeing with the High Court’s conclusion on this issue. IV. Conclusions 33. For the reasons given at Part III, above, I propose to allow this appeal by reference to paras. 3(10), (12) and (13) in the Notice of Appeal only and to dismiss all of the other grounds of appeal. 34. None of the Orders that para. 4 of the Notice of Appeal asks this Court to make reflects the outcome that I propose. In particular, para. - 16 - 4(viii)(a) of the Notice of Appeal, which seeks a stay on the Board of Inquiry proceeding any further until such time as the respondent “makes full disclosure and/or discovery of all statements taken in connection with the investigations and alleged breaches of discipline into the Applicant …, including but not limited to, all notes, records, memoranda, interview notes, audio and/or visual recording of such interviews, to include all statements and reports created in contemplation, preparation and/or presentation of the investigations and alleged breaches of discipline concerning the Applicant” extends far beyond the scope of the decision that I advise the Court to adopt in this appeal. 35. In the light of the foregoing, I am of the provisional view that the Court make an order to quash the proceedings of the Board of Inquiry held on 20 November 2023 and to remit the matter to that body to be determined in accordance with law. Since the parties have not had an opportunity to make submissions on the form of the final order in this appeal, including the costs of proceedings, the matter will be listed for a brief hearing on a date to be fixed by the Office. 36. As this judgment is delivered electronically, I am authorised by Faherty and O’Moore JJ. to indicate their agreement with it. - 17 - Appearances: For the Appellant: Mark Harty SC and Peter Paul Daly, instructed by Kilfeather & Company, Solicitors For the Respondent: Shane Murphy SC and Niall Nolan, instructed by the Chief State Solicitor