S.I. No. 214/2007 - Garda Síochána (Discipline) Regulations 2007


STATUTORY INSTRUMENTS

S.I. No. 214 of 2007

Garda Síochána (Discipline) Regulations 2007

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;

“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;

“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;

“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.

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.

(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.

(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.

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,

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.

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;

(c)      warning;

(d)       caution, or

(e)       advice.

(4)      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.

(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 -

(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 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.

(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,

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 -

(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

(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)      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.

(4)      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:

(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)       all the relevant facts -

(i)         were not ascertained or disclosed,

(ii)        were not considered, or

(iii)       were not considered in a reasonable manner;

(d)       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.

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,

(c)       the grounds for seeking the review as set out by the member, and

(d)       any other documentation related to the proceedings.

(2)      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.

(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.

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.

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.

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 -

(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 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.

(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.

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,

(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 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.

(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.

(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.

(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 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.

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

(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;

(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.

(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.

(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 -

(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.

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;

(c)       any other person permitted by the Appeal Board to be present.

(4)      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 -

(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.

(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.

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.

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

(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.

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)       the Commission does not supervise the investigation.

(2)      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 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

(b)       the Commission has decided to supervise the investigation.

(2)      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.

(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.

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 -

(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 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.

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.

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.

(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.

Revocation

51.       The Garda Síochána (Discipline) Regulations 1989 are hereby revoked.

SCHEDULE

Regulation 5

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.         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.

4.         Neglect of duty, that is to say, without good and sufficient cause -

(a)       failing or neglecting -

(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,

that, to the member's knowledge, is false or misleading,

or

(b)       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.

7.                     (a)        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 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 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

(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.

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.

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.

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).

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.

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GIVEN under the Official Seal of the Government,

this 2nd day of May 2007.

BERTIE AHERN

Taoiseach

 

 

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GIVEN under my Official Seal,

this 2nd day of May 2007.

MICHAEL MCDOWELL

Minister for Justice,

Equality and Law Reform