McDonagh v Garda Siochana Ombudsman Commission (Approved)

Factual and Procedural Background

The Applicant, a single mother of two children, alleges she was assaulted by a third party in a rural town in Galway in December 2008, sustaining traumatic injury. The assault was reportedly captured on CCTV. Following a complaint to the Gardaí and referral to the Director of Public Prosecutions (DPP), an Adult Caution was offered to both parties for a public order offence, which the Applicant rejected but the third party accepted. No prosecution ensued and the Adult Caution was withdrawn in 2009.

The Applicant engaged in correspondence with the DPP in 2011 and again in 2020-2021 seeking review or explanation of the decision-making but received no reasons. On 29 April 2021, the Applicant made a complaint to the Respondent concerning the conduct of An Garda Síochána in relation to the investigation and prosecution of the alleged assault in 2009, focusing on the failure to prosecute the third party despite prior indications that prosecution would proceed if the Adult Caution was declined.

The Respondent found the complaint inadmissible on 23 July 2021, as it was made outside the statutory twelve-month period prescribed by s. 84(1) of the Garda Síochána Act 2005, with no good reasons shown for an extension under s. 84(2). This decision was communicated on 26 July 2021. The Applicant continued to correspond with the Respondent, asserting new grounds and claiming a prior complaint was made at a local Garda Station in 2009, which was never referred to the Respondent. The Respondent maintained its position of inadmissibility through further correspondence dated 8 March 2022, 29 September 2022, and 28 February 2023, stating no further action would be taken.

The Applicant commenced judicial review proceedings in May 2023, challenging the Respondent's decision on grounds including unreasonableness and breach of her right to have the complaint investigated. The Respondent opposed leave on the basis that the proceedings were out of time and that the decision to treat the complaint as inadmissible was lawful.

Legal Issues Presented

1. Whether the Applicant's failure to seek leave for judicial review within three months of the Respondent's inadmissibility decision or subsequent correspondence precludes the application on time grounds.
2. Whether the correspondence dated 28 February 2023 constitutes a fresh decision for the purposes of time limits under the Rules of the Superior Courts.
3. Whether the Respondent's opinion that no good reasons existed to extend the statutory time limit for making a complaint under s. 84(2) of the Garda Síochána Act 2005 was lawful, reasonable, and made bona fide.
4. Whether the Applicant has an arguable case that the decision to treat her complaint as inadmissible was unlawful or procedurally unfair.

Arguments of the Parties

Applicant's Arguments

• The Applicant contends that the traumatic impact of the assault and difficulties in making a complaint in a small rural town justify an extension of time for the complaint to be admitted.
• She asserts that she made a complaint within six months at her local Garda Station in 2009, which was not referred to the Respondent, and that this should be considered.
• The Applicant claims that new information about the misuse of the Adult Caution Scheme came to light in June 2021 through her own research, providing grounds for a fresh complaint or extension of time.
• She argues that the Respondent's refusal to investigate breaches her right to have the complaint properly considered and that the decision was unreasonable.
• The Applicant disputes the Respondent’s affidavit statements as false and misleading.

Respondent's Arguments

• The Respondent maintains that the complaint was not made within the statutory twelve-month period and no good reasons for extension were demonstrated.
• It contends that the Applicant’s claim of a prior complaint at the local Garda Station is unsupported by any record and was not intended for transmission to the Respondent, thus not constituting a valid complaint under s. 85 of the 2005 Act.
• The Respondent asserts that it has no remit over the DPP or power to review its decisions, and the direction not to prosecute came from the DPP.
• The Respondent argues that the Applicant was aware of all material facts long before making the complaint and engaged with the DPP as early as 2011, undermining claims of delay justification.
• It submits that the Applicant did not bring judicial review proceedings within the three-month statutory time limit following the initial decision or subsequent correspondence, rendering the proceedings out of time.
• The Respondent denies any procedural unfairness or unlawful conduct in its decision-making process.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first addressed the issue of whether the Applicant complied with the statutory and procedural time limits for seeking leave to bring judicial review proceedings. The initial inadmissibility decision was communicated on 26 July 2021, with subsequent correspondence reaffirming the decision and indicating no further action would be taken. The Applicant did not seek leave within three months of these communications, instead opening proceedings in May 2023, well outside the prescribed period.

The Court acknowledged an ambiguity in the Respondent's correspondence suggesting potential for reconsideration upon new information, which could arguably justify an extension of time. However, no genuinely new information was presented after September 2022, and the Applicant’s delay from that date to May 2023 could not be excused.

On the substantive merits, the Court considered whether the Respondent’s opinion that no good reasons existed to extend the statutory time limit was lawful and reasonable. The Court emphasized that the discretion to extend time under s. 84(2) is broad but subject to judicial review on grounds of procedural fairness, bona fide exercise, factual sustainability, and reasonableness.

The Applicant’s reasons for delay—trauma and difficulties in making complaints in a small town—were objectively insufficient, particularly given her prior knowledge and engagement with the DPP since 2011. The alleged prior complaint at the local Garda Station was not demonstrated to be a valid complaint for referral to the Respondent, and the Applicant’s new appreciation of the Adult Caution Scheme in 2021 did not constitute new information justifying extension.

The Court found no arguable basis to conclude that the Respondent acted unfairly, irrationally, or otherwise unlawfully in refusing to extend time or admitting the complaint. The Court also noted that the Applicant’s failure to bring timely judicial review proceedings barred her claim.

Holding and Implications

The Court REFUSED LEAVE to proceed by way of judicial review and DISMISSED the application.

The direct effect of this decision is that the Respondent’s determination of inadmissibility on time grounds stands, and the Applicant’s complaint will not be investigated. No new precedent was established, and the ruling confirms the importance of compliance with statutory time limits and the limited scope of judicial review over discretionary decisions by statutory bodies in this context.