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1. By order of 22nd September, 1997, Mr. Justice Moriarty gave leave to the Applicant to bring these judicial review proceedings seeking an Order of Certiorari quashing the order of the Respondent directing the Applicant as a Sergeant in An Garda Siochana to resign from the force with effect from 21st March, 1997 in accordance with Regulation 32 of the Garda Siochana (Discipline) Regulations, 1989 and notifying him that in the event of his failure to so resign dismissal was being ordered with effect from the same date. The grounds on which leave was granted are the grounds set out in the statement required to ground the application for judicial review dated 22nd September, 1997. The relevant grounds as set out are as follows:-

2. The background to the case is as follows. Within the disciplinary procedures of the Garda Siochana, the Applicant was charged with a "breach of discipline" set out as follows in the formal notice or charging document:-

3. It was alleged that this was a breach of discipline within the meaning of Regulation 6 of the 1989 Regulations and as described at Reference No.1 in the Schedule to those Regulations. It is important at this stage to refer to the Regulations. The expression "breach of discipline" is defined in Regulation 4 as having the meaning assigned to it by Regulation 6. The definition contained in Regulation 6 is as follows:-

4. The breach of discipline with which the Applicant was charged is specified in paragraph 1 of the Schedule to the 1989 Regulations. The said paragraph 1 reads as follows:-

5. It is to be noted that a subjective element is introduced here in that it is not sufficient that the conduct would in fact bring discredit on the Garda Siochana. There must be actual or constructive knowledge by the member concerned that that would be so. In the case of the Applicant, the alleged "discreditable conduct" was specified in the manner described above. A three man Tribunal of Inquiry was established by the Respondent under the 1989 Regulations to decide whether the Applicant was in breach of discipline as alleged and, if so, what disciplinary action should follow. In this connection, the Inquiry had power under the Regulations itself to impose reduction in pay not exceeding an amount of four weeks pay or a reprimand or a warning or a caution or advice. But instead of taking any of these steps it also had power in the alternative to recommend to the Respondent the taking of one of the following disciplinary actions, namely:-

6. The Inquiry, after hearing oral evidence and submissions by Counsel for the Applicant, found that there was a breach of discipline as alleged and recommended to the Respondent that he take one of the serious disciplinary actions referred to above. The Commissioner required the Applicant to resign and in default of his so doing directed that he be dismissed. But upon the Applicant invoking an appeal procedure under the Regulations the Respondent delayed the implementation of that decision. An Appeal Board also established under the Regulations and comprising as Chairman, Mr. Gordon Holmes, the solicitor and two officers of An Garda Siochana, duly heard the appeal or more accurately duly heard the application for review of the original decision and communicated to the Respondent in due course that they affirmed the original decision in all respects. The Commissioner then made the order sought to be quashed confirming the demand for resignation or alternatively the ordering of dismissal.

7. At an earlier stage when the Applicant was being investigated, his solicitors, Messrs. Garret Sheehan & Co., wrote to the investigating officer, Inspector Feehan, on 12th March, 1996 asking the following very pertinent questions:-

8. That letter elicited a reply from Inspector Feehan dated 28th March, 1996 in the following terms:-

9. Up to a point that letter was a reasonable response but unfortunately the questions posed by Garret Sheehan & Co. remained pertinent long after the formal charge was laid and indeed were the problems underlying the questions featured in Mr. Leahy's defence of the Applicant both before the Inquiry and the Appeal Board. It is not entirely clear whether Inspector Feehan at that stage fully appreciated the significance or importance of the questions because his reference to "the specific article to the Schedule to the Regulations" is somewhat off point. Merely to be told that the breach of discipline specified in Article 1 is the relevant breach could not possibly afford an answer to the questions posed and indeed the Garda Authorities correctly thought fit to specify in some detail the alleged discreditable conduct when a formal allegation was laid. But despite the details contained in that formal document the questions posed by the Applicant's solicitors remained relevant and unanswered.

10. It would seem necessary now to analyse the formal allegation as laid. It must be noted that it is not alleged that the Applicant was on duty at the time of the alleged events. Secondly, it is not alleged that the sexual activity was non consensual. Thirdly, it is not alleged that anything which was done was done within the view of third parties. If an analogous activity was alleged to have occurred with a female, a major question mark must arise as to whether it would necessarily be "discreditable conduct" or at the very least whether the Applicant could necessarily be expected to know that it would be such. Given the statutory and public tolerance of consensual homosexual activity in private between adults, it may be a tenable view, putting it at its very minimum, that in considering whether such conduct was discreditable or not, the homosexual aspect should not be taken into account. I want to make it clear that I am not making any decision as to whether that would be so or not. Mr. D. was a stranger to the Applicant and on the evidence was heterosexual but if, for instance, he had been a homosexual friend of the Applicant, that might be a highly relevant factor as to whether the conduct was discreditable or not. I am making these points for the purpose of demonstrating that the bald facts in a charge may not be sufficient if those bald facts only constitute discreditable conduct in a particular context in which they happened and where that context is not in any way referred to in the form of charging document. I fully accept that not every detail of the events underlying the charge of discreditable conduct would have to be set out in the formal documentation. Nor do I believe that every single fact which is set out need necessarily be proved as was the submission of Mr. Leahy before the Appeal Board. For instance, in the particular context of this case it is not, in my view, of much material importance whether Mr. D. let back the passenger seat on the request of the Applicant as was originally claimed or whether the Applicant did it himself as later alleged. But where the factual context is vital to an understanding of what the discreditable nature of the conduct is alleged to be, that context must, in my opinion, be stated at least in summary form and there should be no ambiguities.

11. There is no doubt that even on an interpretation most favourable to the Applicant there was a great deal of context in this case which it is not necessary to go into but which rendered the Applicant's conduct reprehensible and discreditable. Even if what happened was technically consensual there is uncontested evidence indicating that advantage was taken by the Applicant of a student whom he did not know at all walking home at night. But the Applicant was entitled to know exactly what he was being charged with and in the absence of knowing that, he had no way of knowing the reasoning behind the decision of the Tribunal of Inquiry which simply found the charge proved as laid. The Appeal Board in turn gave no reasons at all but simply communicated to the Commissioner as they were bound to do under the Regulations their decision which was simply to affirm the Inquiry's decision. At all material times, therefore, the Applicant has been left in the dark as to whether the question of the alleged conduct being consensual or non consensual was regarded as relevant and also as to the question of whether the fact that the conduct was homosexual rather than heterosexual was considered as relevant. I want to make clear again that it may well be that even heterosexual consensual conduct in similar circumstances might, depending on the facts give rise to a finding of discreditable conduct and a recommendation of dismissal, but, in my view, that is beside the point. Before that stage is reached the person facing the allegations must know precisely what is alleged against him to be discreditable conduct. That was never clear here and was particularly rendered unclear by the closing address to the Tribunal of Inquiry by the presenting guard who referred to the activities of the Applicant as an assault. In my view, therefore, the Applicant did not have the benefit of fair procedures.

12. Having formed this conclusion, I have some difficulty in determining what the correct order should be. The Appeals Board is merely a Notice Party. The Tribunal of Inquiry is not a party at all. In one sense the Commissioner was entitled to make a decision following on the decisions of those bodies. But with some hesitation I have come to the conclusion that I am entitled to and indeed ought to grant the relief as sought, namely, an order quashing the Commissioner's decision on Certiorari because it seems to me that the flawed procedures essentially derived from an inadequate and ambiguous discipline form. I will therefore quash the decision of the Commissioner ordering resignation and directing dismissal in default.