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2026 IEHC 332

THE HIGH COURT [2026] IEHC 332 Record Number 2025/1340 JR Between RAYMOND HEGARTY Applicant and COMMISSIONER OF AN GARDA SÍOCHÁNA Respondent JUDGMENT of Ms Justice Nessa Cahill delivered on 22nd May 2026 OVERVIEW

  1. The Applicant engaged in sexual interactions with a young woman in an interview room in a Garda station while taking a statement of her evidence. This occurred on 15 March
  2. In the course of disciplinary proceedings, the Applicant admitted these facts (among others) and that they amounted to misconduct. In 2020, the Applicant was notified that he was suspended from duty and that the Commissioner was considering his dismissal as a member of An Garda Síochána on the ground that his continued membership would undermine public confidence in An Garda Síochána and his dismissal was necessary to maintain that confidence. The Applicant’s attempted judicial review of the dismissal and suspension was ultimately unsuccessful, the Supreme Court refusing the relief sought by judgment delivered on 17 July
  4. On 15 August 2025, the Applicant was again notified of his suspension from duty and that the Commissioner was considering his dismissal as a member of An Garda Síochána, on the basis of the same misconduct, and for substantially the same reasons, as in
  5. On 10 September 1 2025, the Applicant sought and obtained leave to seek judicial review of both the suspension and dismissal notices.
  6. By this judgment, I reject the challenge to the dismissal process and refuse to quash the notification issued by the Commissioner in that respect. However, I find the notice of suspension to be invalid, on the basis that it failed to comply with the mandatory statutory requirement to notify the Applicant of the proposed duration of the suspension.
  7. The judgment will be structured as follows: A. Background B. These proceedings C. Relevant legislation D. Hegarty No. 1 E. Preliminary Issues a. Prematurity b. Henderson v. Henderson c. Evidential objection F. Grounds of review a. Commissioner ground b. Irrationality ground c. Materials ground d. Public confidence e. Irrelevant considerations f. Suspension Challenge G. Conclusions 2 A. BACKGROUND The Disciplinary Process
  8. A disciplinary process was commenced under Part 3 of the Garda Síochána (Discipline) Regulations, 2007 (S.I. 214 of 2007) (“the 2007 Regulations”). Part 3 of the 2007 Regulations deals with “serious breaches of discipline”. The Commissioner appointed a Garda Superintendent to investigate the alleged breaches of discipline by the Applicant. This culminated in a recommendation that a board of inquiry be established to deal with the matter. When the board of inquiry met on 25 September 2018, the Applicant admitted the breaches of discipline and the facts as alleged in the statement of facts with which he was furnished. What was admitted were two breaches of discipline, including that “you, Garda Raymond Hegarty.., did conduct yourself in a manner which you knew or ought to have known would be reasonably likely to bring discredit on the Garda Síochána in that you did on 15 March 2017 engage in a sexual act with Ms X. at Lismore Garda Station, while on duty and during the course of taking a statement of evidence from her relating to the arrest of her sister on 14 March 2017.”
  9. Following the hearing, the board of inquiry recommended that the Applicant be required to retire or resign as an alternative to dismissal (among other recommendations). The Applicant was suspended from duty. The Commissioner accepted the board’s recommendation and, on 25 October 2018, issued a decision requiring “the applicant to resign from an Garda Síochána as an alternative to dismissal.” The Applicant availed of his right to appeal to an independent appeal board under the 2007 Regulations, and, by notice of appeal dated 30 October 2018 challenged the severity and proportionality of the penalty. He was suspended from duty pending the outcome of the appeal.
  10. The appeal board decided on 17 January 2020 that the dismissal of the Applicant was disproportionate and it substituted that sanction with a penalty of a reduction in pay of four weeks. Eight days later, on 24 January 2020, a Garda Assistant Commissioner notified the Applicant that he was suspended from duty to allow consideration by the Commissioner of section 14 of the Garda Síochána Act 2005, as amended (“the 2005 Act”). This suspension was continued from time to time from then until mid-October
  11. Hegarty No. 1
  12. On 30 March 2020 the applicant sought and obtained leave to apply for judicial review of the January 2020 suspension decisions to suspend him. 3
  13. On 31 March 2020, the Garda Commissioner wrote to the Applicant stating that he was of the opinion that, by reason of the Applicant's behaviour and conduct, including inappropriate sexual conduct at Lismore Garda Station on 15 March, 2017, the Applicant's continued membership of An Garda Síochána would undermine public confidence in An Garda Síochána and that the Applicant's dismissal pursuant to section 14 of the 2005 Act was necessary to maintain that confidence (“the Section 14 Notice”). The notice detailed the basis of that opinion and invited submissions. According to his grounding affidavit, the Applicant provided submissions to the Commissioner as to why that notice should not be carried into effect.
  14. The Applicant then applied to amend his statement of grounds to challenge the Section 14 Notice, including claiming that the Notice was ultra vires, irrational, an abuse of process, in breach of natural and constitutional justice and a decision that could not properly be made. The grounds hinged largely on the allegation that the Notice subverted the determination of the appeal board and the Commissioner breached the 2007 Regulations by failing to implement that determination. Breaches of fair procedures were alleged, based on the failure to conduct an inquiry as to whether public confidence would be undermined and the failure to advise the Applicant of the Commissioner’s concerns or invite responses before issuing the Section 14 Notice. By a subsequent further amendment, the Applicant added the ground that the Commissioner exposed the Applicant to two disciplinary actions in respect of one set of breaches of discipline in breach of natural and constitutional justice and of the principle against double jeopardy.
  15. The Applicant succeeded before the High Court ([2022] IEHC 183) and the Court of Appeal ([2023] IECA 266) on the ground (broadly summarised) that exposing the Applicant to the peril of dismissal for the same conduct for which he had already been penalised was a breach of the Applicant’s rights to constitutional justice.
  16. By judgment delivered on 17 July 2025, the Supreme Court overturned the decision of the Court of Appeal (Hegarty v Commissioner of An Garda Síochána [2025] IESC 36 per Murray J., with O’Donnell C.J., Dunne, O’Malley JJ in agreement and Woulfe J. dissenting: references to Hegarty No. 1 in this judgment refer – unless otherwise indicated – to the majority judgment of Murray J.). I will return to this judgment later. Section 51 Notice
  17. Four weeks after delivery of the Supreme Court judgment, on 15 August 2025, the Commissioner issued a notice to the Applicant pursuant to section 51 of the Policing, Security and Community Safety Act 2024 (“the 2024 Act”) informing him that the Commissioner was 4 considering his dismissal from An Garda Síochána on the basis that, “I am of the opinion, by reason of your conduct, that your continued membership would undermine public confidence in An Garda Síochána and that your dismissal is necessary to maintain that confidence” (“the Section 51 Notice”).
  18. The Section 51 Notice contains an account of the facts, particularly the matters admitted by Garda Hegarty, and the following statement of the Commissioner’s view: “I am firmly of the view that you were aware and had knowledge that Ms X, who attended at Lismore Garda Station, was vulnerable and you were on duty in a position of authority as a member of An Garda Síochána in a Garda Station alone with Ms. X and your conduct was unacceptable and wholly inappropriate.” The Commissioner concludes, “your actions were such that, in my opinion, it is not appropriate for you to continue to serve as a member of An Garda Síochána”. I pause here to note that these statements replicate nearly exactly what was said in the Section 14 Notice (as recounted in the judgments of the High Court and the Court of Appeal in Hegarty No. 1).
  19. The Section 51 Notice sets out an account of the matters admitted by Garda Hegarty when the board of inquiry met to hear the allegations in September
  20. The Commissioner references “the position of trust, authority and responsibility” occupied by a member of An Garda Síochána and – again in nearly identical terms to the Section 14 Notice – and continues as follows: “Considering all matters, I am of the opinion that your behaviour and conduct between the 14 and 17 March 2017 and, in particular, on 15 March 2017, at Lismore Garda Station, is incompatible with membership of An Garda Síochána and seriously undermines your professionalism, honesty and integrity and compromises your ability to serve as a member of An Garda Síochána. I am of the opinion that your continued membership is untenable given the requirement for the maintenance of public confidence in An Garda Síochána and that your dismissal is necessary to maintain public confidence.”
  21. The Commissioner refers to the “extraordinary powers” given to members of An Garda Síochána and states that public confidence “depends on members demonstrating the highest level of personal and professional standards of behaviour”. He records the view that the Applicant’s behaviour is a “clear breach of the dignity of Ms X and her human rights”. The Commissioner proceeds to refer to the judgment of the Supreme Court in Hegarty No. 1, quoting the statement by Murray J. that the Commissioner must be satisfied “that the dismissal of the Applicant is necessary to maintain public confidence in An Garda Síochána”. The 5 Commissioner then concludes, “I am of the opinion that your dismissal is necessary in order to maintain public confidence in An Garda Síochána”; that the necessary threshold was reached; and that “I am of the opinion that your continued membership undermines public confidence in An Garda Síochána and pursuant to section 51(a)(i) and (ii) of the Policing, Security and Community Safety Act 2024 that your dismissal as a member is necessary to maintain public confidence”.
  22. The Commissioner then informs the Applicant of his right to make submissions under section 51(c) of the 2024 Act on or before 5 September 2025 setting out reasons why he should not be dismissed. No submissions have been made by the Applicant to date. Suspension Notice
  23. The Applicant had been suspended from 25 September 2018 and then recommenced employment in mid-October 2023 (these are the dates in the grounding affidavit of Garda Hegarty, although there is some confusion in this respect, as the affidavit of Superintendent Brian Hoey sworn on behalf of the Commissioner on 16 October 2025 states the Applicant returned to work following the judgment of the Court of Appeal, whereas the judgment of the Court of Appeal was not delivered until 7 November 2023).
  24. The Applicant then suffered an injury an April 2025 as a result of which he was not able to work and, according to the affidavit sworn by the Applicant himself on 9 September 2025 in these proceedings, he was not then expected to return to work in the immediate term.
  25. On 15 August 2025, a further suspension notice was issued (“the Suspension Notice”) notifying the Applicant of his suspension from duty “for the duration of the disciplinary proceedings” pursuant to regulation 7 of the Policing, Security and Community Safety Act 2024 (Conduct) Regulations 2025 (“the Conduct Regulations”). This Notice was issued by Assistant Commissioner Jonathan Roberts. It states that the suspension arises from “consideration by the Garda Commissioner of your position, as a member of An Garda Síochána, pursuant to section 51…”. The suspension has been continued since then. The Applicant has been on full pay during this suspension (he was initially suspended on half pay, but this was revised with retrospective effect). B. THESE PROCEEDINGS
  26. Following receipt of the Section 51 Notice, the Applicant’s solicitor wrote to the Commissioner on 26 August 2025 stating that he required “a copy of all materials relied upon by you when forming your Opinion.. under Section 51.” By letter dated 1 September 2025, the Commissioner refused the request for the materials and repeated that any submissions were due 6 by 5 September
  27. The Applicant’s solicitor replied on 4 September 2025 raising three issues: (a) the opinion in the Section 51 Notice was that of the previous Commissioner not the current holder of that office (Mr Drew Harris having been replaced by Mr Justin Kelly as Commissioner on 1 September 2025) and the opinion could not be relied on; (b) the Applicant was legally entitled to the materials sought; and (c) there were facts asserted in the Notice which were not established in any materials in the possession of the Applicant.
  28. A letter dated 5 September 2025 was sent to Assistant Commissioner Roberts regarding the Suspension Notice. On 10 September 2025, the Applicant obtained leave to seek judicial review to challenge the Section 51 Notice and the Suspension Notice.
  29. The grounds contained in the Statement of Grounds may be summarised under six broad headings. - First, the primary claim concerns the alleged failure to provide materials. This will be referred to in this judgment as “the Materials Ground”. - Second, there is a ground that the newly appointed Commissioner cannot proceed on the basis of the opinion of the previous holder of that office. This is will be referred to here as the “Commissioner Ground”. - Third, the Application makes various complaints that the Section 51 Notice references facts which were not admitted or found or which are said to be irrelevant. He also contends that there was a failure to include relevant factors. These grounds are referred to here as the “Irrelevant Considerations Grounds”. - Fourth, there is a series of grounds advanced to the effect that the conduct admitted was not of sufficient gravity to justify the exercise of the power conferred by section 51, and that the decision to exercise that exceptional jurisdiction was in the circumstances unlawful, irrational and ultra vires. These points are referred to – by way of shorthand only – as “the Irrationality Ground”. - Fifth, there is a claim of a want of evidence to support the apprehended lack of public confidence which is referred to here as “the Public Confidence Ground”. 7 In oral submissions this was somewhat expanded into a complaint about the absence of an inquiry, but this is not pleaded. - Sixth, there are grounds pleaded to challenge the Suspension Notice, particularly by reference to an error on the face of that Notice. These are pleaded at paragraphs 52 to 59 and are described here as “the Suspension Challenge”. These arguments (other than the reference in paragraph 56 to the error) were not advanced in written or oral submissions.
  30. The proceedings are grounded on an affidavit sworn by Garda Hegarty on 9 September
  31. The Commissioner’s statement of opposition was delivered on 16 October 2025 grounded on an affidavit sworn by Supt. Brian Hoey, a superintendent in An Garda Síochána in the area of internal affairs. A further affidavit was sworn by Garda Hegarty on 28 October 2025 and a second affidavit was sworn by Supt. Hoey on 7 November
  32. The Commissioner did not swear an affidavit for the purpose of these proceedings. C. RELEVANT LEGISLATION
  33. The 2024 Act was signed into law on 7 February 2024 and came into operation on 2 April 2025 (by SI 107/2025 - Policing, Security and Community Safety Act 2024 (Commencement) Order 2025). By section 5 and schedule 1 of the 2024 Act, the 2005 Act was repealed in full. Section 51 of the 2024 replaces (and substantially replicates) section 14 of the 2005 Act.
  34. Section 14

(2)of the 2005 Act provided as follows: “Notwithstanding anything in this Act or the regulations, the Garda Commissioner may dismiss from the Garda Síochána a member not above the rank of inspector if— (
  1. a)the Commissioner is of the opinion that— (
  2. i)by reason of the member’s conduct (which includes any act or omission), his or her continued membership would undermine public confidence in the Garda Síochána, and (
  3. ii)the dismissal of the member is necessary to maintain that confidence, (
  4. b)the member has been informed of the basis for the Commissioner’s opinion and has been given an opportunity to respond to the stated basis for that opinion and to advance reasons against the member’s dismissal, (
  5. c)the Commissioner has considered any response by the member and any reasons advanced by the member, but the Commissioner remains of his or her opinion, and (
  6. d)the Authority consents to the member’s dismissal.” 27. Section 51 of the 2024 Act is now the material provision for the purpose of these proceedings. It provides: 8 “Without prejudice to the Performance Regulations and the Conduct Regulations, the Garda Commissioner may dismiss from An Garda Síochána a member below the rank of chief superintendent where— (
  7. a)by reason of the member’s conduct (which includes any act or omission) the Garda Commissioner is of the opinion that— (
  8. i)the member’s continued membership would undermine public confidence in An Garda Síochána, and (
  9. ii)the dismissal of the member is necessary to maintain that confidence, (
  10. b)the member has been informed of the basis for the Garda Commissioner’s opinion under paragraph (a), (
  11. c)the member has been provided with an opportunity to make submissions as to why he or she ought not to be dismissed, and (
  12. d)the Garda Commissioner has considered any submissions made by, or on behalf of, the person under paragraph (c), and remains of his or her opinion.” 28. These provisions are substantially the same: each hinges on the formation by the Commissioner of the opinion that, by reason of the conduct of the individual in question, their continued membership “would undermine public confidence in the Garda Síochána” and the separate additional opinion that the dismissal of that person “is necessary to maintain that confidence”. One drafting change that can be observed – and which I will return to later - is that it is an express requirement of section 51 that both opinions must be formed “by reason of the member’s conduct”, whereas section 14 only expresses that to be a condition of the first opinion (that membership would undermine public confidence). Subject to that amendment, the provisions are the same. Accordingly, the analysis of section 14 in the judgment of the Supreme Court in Hegarty No. 1 governs these proceedings. D. HEGARTY NO. 1 29. In Hegarty No. 1 Leave to appeal to the Supreme Court was granted on four grounds, all of which centred on the interaction between a disciplinary process under the 2007 Regulations and the power of dismissal under section 14 of the 2005 Act ([2024] IESCDET 15). The other grounds for which leave to seek judicial review was originally granted were not part of the appeal. 30. Overturning the decision of the Court of Appeal, the Supreme Court disagreed that it was contrary to constitutional justice for the Commissioner to exercise the power conferred by section 14, after the Applicant had been penalised for the same conduct in a concluded disciplinary process. The Supreme Court instead found that the powers of discipline under the 9 2007 Regulations and the power of dismissal under section 14 “do not have the same purpose” (at [40]) and that, “[w]hile these two procedures may well demand the taking into account of some similar factors and considerations, they are fundamentally different in nature and purpose” (at [46]). The distinction between the protective purpose of section 14 and the purpose of a disciplinary process (being primarily to impose a sanction for misconduct) is, according to Murray J., “…not a difference of form, but of substance, object and purpose” (at [41]). In short, section 14 is not a surrogate for disciplinary proceedings and can be exercised independently of, and notwithstanding the outcome of, such proceedings. 31. The exceptional nature of the power conferred by section 14 and the very high threshold that must be met for its exercise are referenced throughout the judgment of Murray J: - “The power vested by s. 14
(2)is exceptional, and the scope for the exercise of it is ‘ very limited’ ( McEnery v. Commissioner of An Garda Síochána [2015] IECA 217 (at para. 36)). The power must be exercised rationally and for its proper purpose. That demands that the conduct giving rise to the exercise of the power be of sufficient gravity to reasonably justify dismissal, and the apprehended lack of confidence be itself rationally grounded” (at [36]) - “[T]he power will likely most frequently fall for exercise when a member of An Garda Síochána engages in conduct involving significant moral turpitude such as would also represent an infraction of disciplinary rules, this is not the only situation in which the power may be deployed” (at [41]). - “The power vested in the Commissioner by s. 14
(2)is of thus of crucial importance, and the responsibility invested in the Commissioner when exercising it, immense” (at [42]). - “…[T]he s. 14
(2)power can only be exercised in circumstances that are truly exceptional and where the relationship between the conduct and concerns of public confidence is clear and pressing” (at [52]). - “Section 14
(2), it must be stressed, confers an extreme power to be resorted to only in the wholly exceptional situation in which the conduct of a member is such that their continued membership of the force would undermine public confidence in An Garda Síochána and the dismissal of that person is ‘ necessary to maintain that confidence’ ” (at [76]). 32. In the case of Garda Hegarty, the Supreme Court made no findings as to whether the facts as found and admitted by him warranted the exercise of the power conferred by section 14, but did make the following observations: 10 “While it is not appropriate for this Court to express any view as to whether the facts in issue in this case meet the threshold envisaged by s. 14
(2), the Commissioner must be alert to the height of the bar put in place by this section and the gravity of the assessment required by it. It is not enough for him to conclude that the conduct of the Applicant was wrongful or even disgraceful, and it is not enough for him to form the view that some members of the public might lose confidence in the police force if the Applicant remains a member of that force. It is not enough that a section of the public be temporarily incensed by a particular event and demand and obtain dismissals. The Commissioner must take a broader view, and he must be satisfied in taking that view, that the dismissal of the Applicant is necessary to maintain public confidence in An Garda Síochána. One would have thought that this threshold is higher in the case of lower ranking members of the force than in the case of senior officers” (at [52], see also [75]).
  1. The critical point made is that disgraceful conduct or conduct that has temporarily incensed the public is not enough: the dismissal must be necessary to the maintenance of public confidence in An Garda Síochána. E. PRELIMINARY ISSUES (a) Prematurity
  2. The first preliminary objection pleaded by the Commissioner is that the section 51 process is “at initiation stage only” and a decision can only be made following consideration of submissions. On this basis, it is argued that the proceedings are premature. The points made in submissions include that there has only been a decision to invoke section 51; there can be no assumption there will be a decision to dismiss Garda Hegarty; that submissions need to be received and considered before such a decision can be taken; and that when a decision is taken there will be full reasons given for it, and it is at that stage that a challenge could be brought.
  3. The Applicant makes the point that the same argument of prematurity was expressly rejected by the High Court and the Court of Appeal in Hegarty No. 1 (and not disturbed by the Supreme Court). It is also asserted that the challenge to the failure to provide documentation is an answer to the assertion of prematurity. Baynham v. Commissioner of an Garda Síochána [2023] IEHC 735, [2025] IECA 194 (“Baynham”) is relied on for this proposition.
  4. The Commissioner’s response on that point is that there no valid argument of prematurity in Hegarty No. 1, given the case advanced was that section 14 could not be invoked. 11 Assessment
  5. The starting point for assessing the assertion of prematurity is the test in Rowland v. An Post [2017] 1 IR
  6. In broad terms, the test expounded in that case for assessing whether a challenge to a process is premature, is whether it is clear that the process has already gone irremediably wrong. If not, then any errors may be corrected later in the process and it should be permitted to continue, with any challenge awaiting its outcome. This test has been addressed in a series of judgments that address section 14 of the 2005 Act (the precursor to section 51) and which were relied upon by the parties to these proceedings. I will address these in chronological sequence.
  7. In Ivers v. Garda Commissioner [2021] IEHC 572, [2022] IECA 206 (“Ivers”), section 14 was invoked by the Commissioner, without a prior disciplinary process having concluded, unlike this case. There, the High Court (Heslin J.) accepted the argument that the proceedings were premature, on the basis that it could not be said that the process had gone irremediably wrong. The reasoning was that the section 14 process was at an early stage, in which representations had been invited but not yet considered, which would be followed by a second stage enquiry.
  8. In Hegarty No. 1, the High Court (Ferriter J.) rejected the argument of prematurity on the basis that it was the very commencement of the section 41 process which put the Applicant in peril of being sanctioned for behaviour for which he had already been through a disciplinary process: “I do not believe it can be said the applicant's challenge is premature where the applicant, by virtue of the Commissioner's invocation of s.14 and his commencement of the s.14 process, is exposed to the peril of being removed from the force when he has already successfully faced down that peril in a prior process which the Commissioner instigated and in which the Commissioner fully participated” (at [55]).
  9. Ferriter J. concluded in this respect that, “[o]n any view, the commencement of the s.14 process puts the applicant in peril of the ultimate sanction of dismissal. In my view, it is not premature of the applicant to seek to challenge the invocation of s.14 in circumstances where he maintains that exposure to such a peril is of itself unlawful” (at [55]). Ferriter J. considered the approach taken in Ivers to this question and distinguished it on the basis that there was no concluded disciplinary process in that case.
  10. The next judgment on this point was the judgment of the Court of Appeal in Ivers. Allowing the appeal in that case, the Court found that the Commissioner acted ultra vires in deploying section 14, in the absence of admitted or conclusively found facts. The Court made the following finding on the question of prematurity: 12 “I am satisfied that where the conduct in question is genuinely in dispute, s. 14
(2)has simply no application. For that reason, arguments about prematurity based on the Rowland jurisprudence fall away and are immaterial to the issues in this appeal. In my view, the Commissioner had no power to invoke s. 14
(2)in the circumstances of the present case and acted ultra vires in doing so. The issue of prematurity does not therefore arise for consideration” (at [87]).
  1. The next judgment chronologically is the judgment of the Court of Appeal in Hegarty No.
  2. The Commissioner again argued that the section 14 process was at an early stage such that the challenge to that notice was premature and inappropriate. This was again rejected. The Court of Appeal (Faherty J., Donnelly and Noonan JJ in agreement), ruled as follows: “
  3. I cannot accept the Commissioner's argument. Patently, where the applicant's very argument is that the s.14
(2)process should never have been embarked on in circumstances where he had already been the subject of a disciplinary process under Part 3 of the 2007 Regulations that had run its full course, he cannot be said to have jumped the gun in initiating judicial review proceedings when he did. 66. As the Judge opined, the Commissioner's argument that no final determination had been made under the s.14 process cannot be the answer to the applicant's fundamental objection, which was that the Commissioner pursuant to s. 14 of the 2005 Act was seeking the dismissal of the applicant for precisely the same conduct which was the subject of the disciplinary proceedings under the 2007 Regulations (and which had run to ultimate conclusion). The upshot, as the Judge said, was that “the applicant is now in peril of a second (and very grave) sanction for the same conduct” (para. 53) a sanction which, as the Judge observed, the applicant “has already successfully faced down” (para. 55). I have no hesitation in upholding the Judge and thus rejecting the Commissioner's submission that the judicial review proceedings are premature.” 43. The Supreme Court in Hegarty No. 1 referenced the findings in the High Court and the Court of Appeal on prematurity (at [23] and [39]), but the issue of prematurity was not one of the grounds on which leave to appeal was granted (see [2]). It was not therefore addressed further. What these judgments concerning section 14 disclose is that the same principles of prematurity apply in that context. If there is a fundamental objection to the initiation of the process, the objection of prematurity does not arise. 44. Additional authorities cited by the Commissioner are Habte v Minister for Justice [2021] 3 IR 627, [2020] IECA 22 (“Habte”) and Murphy v Commissioner of An Garda Síochána [2023] 13 IECA 92 (“Murphy”). While the contexts of those cases are distinct, certain findings are universal, including the observation by Murray J. in Habte that “[a]case may be premature because there is at the time of the institution of the proceedings no properly developed factual context in which the Court can adjudicate on the issues presented by the case….” (at [96]). The decision in Habte was then relied upon and characterised as follows in Murphy: “what Habte demonstrates is that this type of process, which commences with a stated intention by a decision maker to begin the process (which is correctly described as the formulation of a proposal), should usually be allowed to run its course” (at [49]). 45. In Murphy, the attempt to challenge the notice proposing to dispense with the services of a person who was on probation as a member of An Garda Síochána was found by the Court of Appeal to be premature. This was on the ground that, applying Rowland, it could not be said that the procedure had gone irremediably wrong. 46. This finding was explained by Donnolly J. (Whelan and Ni Raifeartaigh JJ. in agreement) as follows: “60. Was this a procedure that had gone irremediably wrong? Or a procedure that could not be cured during the statutory process? To draw a conclusion that it had gone irremediably wrong or could not be cured would be inappropriate. Although the respondent submitted that he was at imminent risk of having his services dispensed with, such action would only have occurred if the Commissioner had failed to engage at all with the respondent's submissions. Those submissions included his claim to entitlement to documentation. The Commissioner was constitutionally bound to act fairly and in accordance with natural and constitutional justice. Despite the failure to respond to that request in a timely fashion, the documents were ultimately given to the respondent. The process was at the beginning. It cannot be said that the process had gone irremediably wrong at the time the respondent invoked the court's protection. The process ought to have been allowed proceed in accordance with the principles of natural and constitutional justice.” 47. The clear tenet of this judgment is that when a process is at the beginning, submissions having been invited but not yet furnished or considered, it is premature for the process to be challenged. There can be no room for an assumption that principles of natural and constitutional rights will not be respected. 14 48. Based on the authorities cited above, the legal test for prematurity remains broadly as stated in Rowland v. An Post: is it clear that the process under section 51 has gone so irremediably wrong as to warrant a challenge now being brought? If the argument is that the process should never have been embarked upon (as addressed by the High Court and Court of Appeal in Hegarty No. 1), then the proceedings challenging the initiation of that process are unlikely to be premature. 49. While not directly relevant, I would observe that the Supreme Court in Lacramioara Amariei v. Chief Appeals Officer [2026] IESC 22 recently restated and re-invigorated the principle that adequate alternative appeal mechanisms should be exhausted before recourse is had to judicial review. This case is not about alternative remedies or appeals but I do regard the rationale of the majority judgment of Donnelly J. (O’Donnell C.J., Charleton and Murray JJ. in agreement, Woulfe J. dissenting in part) to be an important reminder of the function of judicial review proceedings and the need to ensure they are not issued pre-emptively, when there are other statutory processes that could first be pursued. 50. The following observation has some resonance here: “Public confidence in the administration of justice could be affected if the courts were to become blocked with large numbers of claims brought by those who had another route to the redress they sought open to them; thus, preventing those with no other avenue open to them from seeking timely relief. That itself could also threaten the rule of law, where the public no longer has confidence in the effective and efficient administration of justice” (at [61]). 51. Turning to the specific grounds being pursued in this case, it is immediately apparent that prematurity cannot be a complete answer to the proceedings. There are certain grounds which are simply not capable of being remedied in the ensuing process and which fall into the same bracket as the “double jeopardy” ground in Hegarty No. 1 or the ultra vires ground in Ivers. For example, the Commissioner Ground will not be remedied or affected by any process or step that may follow. The Irrationality Ground falls into a similar category, as does the Suspension Challenge. These claims do not assert procedural flaws that can be addressed in a future process. It is of course possible that an adverse decision would not ultimately be taken under Section 51 (as the Commissioner points out), but this is not an answer to the issue of prematurity insofar as it is based on alleged, presently identifiable and irremediable flaw in the process. The types of grounds just summarised hinge on assertions of existing, irremediable, inherent flaws and I do not see how they could be remedied in the process. 15 52. A similar form of analysis can be applied to the Materials Ground. Unlike the situation in Murphy, there is no apparent prospect of the Commissioner agreeing in the course of the process to provide the material sought to the Applicant. The case pleaded in the Statement of Opposition is that “there can be no obligation on the Commissioner to provide the materials sought to the Applicant”. The second affidavit of Supt. Hoey also makes the Commissioner’s position clear. He states that “any claims the Applicant might continue to make about not being provided with the materials underpinning – or not having knowledge of the factual basis of - (
  1. i)the Commissioner's decision under s.5I and (
  2. ii)the decision to suspend the Applicant are unsustainable”. His conclusion is that, “[t]he Applicant is in no doubt about what led to the Commissioner’s decision to invoke s.51 and suspend him, and he has the requisite documentation which provides the rationale for those decisions”. The Materials Ground has therefore crystallised as a ground and it appears to me that there is a good argument that this ground should be determined before the process goes further. I accept the submissions made on behalf of the Applicant in that respect. 53. For these reasons, I do not regard the proceedings as a whole to be premature. However, there are certain discrete aspects of the challenge to the Section 51 Notice which I do believe to be barred on the basis of prematurity. 54. Most obviously, the Irrelevant Considerations Ground, as pleaded, is based on the content of (or omissions from) the Section 51 Notice. The Applicant has identified in the Statement of Grounds and in submissions a series of matters which he asserts were or were not factored into the decision to issue the Section 51 Notice. There is no reason of which I am aware why these points cannot be made in submissions to the Commissioner and there is no basis to assume that the Commissioner will not duly consider any submissions so made. It is not an appropriate or useful exercise to ask a court to intervene now on the basis of a form of assumption that the Applicant’s rights to fair procedures will not be respected (an approach cautioned against in Murphy). Insofar as the Applicant asserts that the pleadings and affidavits furnished in these proceedings indicate further irrelevant matters that the Commissioner took into account (particularly the question of the door of the interview room being locked) that is not part of the pleaded case, but is in any event something the Applicant can address in submissions to the Commissioner. 55. I note the Applicant asserts that there is an incongruity in the Commissioner’s reliance on both Henderson v. Henderson and prematurity as preliminary objections (I return to the Henderson v. Henderson objection in the next section of this judgment). Superficially, I can see why that point is made. However, it belies the reality that the Irrelevant Considerations Ground could have been advanced in Hegarty No. 1 (if the Applicant believed they were meritorious), but 16 were not. They may well not have been determined in those first proceedings, even if they had been argued, including – possibly – on the ground of prematurity. Either way, they are not grounds that should be permitted to proceed now. These matters can instead be addressed by way of submissions to the Commissioner under section 51(
  3. c)(should the Applicant so choose). 56. Another ground that is obliquely advanced concerns the reasons for the Section 51 Notice. In fact, what is pleaded in the Statement of Grounds is a failure to provide materials or, in the alternative, a failure to properly explain the basis for the opinion, including the obligation to set out the materials relied upon and a statement of reasons. There was no request for a further statement or explanation of the reasons for the Section 51 Notice before the issue of the proceedings. Moreover, insofar as the Applicant may wish to challenge the reasoning of the Commissioner’s decision, I am satisfied that now would not be the time to do so. The Supreme Court in McEnery v. Commissioner [2016] IESC 66 (which concerned a power of summary dismissal under the 2007 Regulations couched in similar terms to the power under section 51) makes plain that the sufficiency of reasons for a decision properly falls to be determined when the final dismissal decision is communicated, after the consideration of submissions received: “the point in time at which the Commissioner must, in order to comply with the principles of natural and constitutional justice, give reasons for his decision is when, after giving the member an opportunity to submit to the Commissioner reasons against the proposed dismissal and, if he receives such submissions, after he has considered them, he makes a conclusive decision to dismiss” (Laffoy J. at [64]. See also [56], [57], [63]). 57. This is confirmed by the terms of the Section 51 Notice here in which the Commissioner states that he will consider any submissions received from the Applicant and that “I will consider, after the date, whether I am still of the opinion as outlined above to dismiss you from An Garda Síochána. At that stage I will inform you of my decision, which will include my rationale.” 58. It is only when a final decision is made and communicated by the Commissioner, after receipt and consideration of such submissions, that a challenge to the adequacy of reasons could then be ripe. For present purposes, the Applicant can make any points he deems to be appropriate regarding the content of the Section 51 Notice, any omissions from that document, or the sufficiency of the grounds or the reasons given, when he makes submissions under section 51(c). It is however premature to seek judicial review to challenge the sufficiency of the content of the Section 51 Notice by these proceedings at this juncture. 17 59. To summarise my findings on the prematurity objection: there are certain grounds of appeal which are not caught by this objection, most notably the Commissioner Ground, the Irrationality Ground and the Materials Ground. The Suspension Challenge is in the same category. 60. The Irrelevant Considerations Ground and any challenge to the sufficiency of the reasons (insofar as that is advanced), are premature, as the process is still underway and the Applicant has not yet made submissions on these points. I do not consider it appropriate for these grounds to be advanced or determined at this stage of the section 51 process. (
  4. b)Henderson v. Henderson The Parties’ Positions 61. The Respondent contends that several of the arguments now being ventilated could have been - but were not – advanced in Hegarty No. 1. In particular, the Commissioner pleads that the Applicant did not argue the Irrationality Ground, even though it was the same opinion relied upon. It is said that the same allegations are made; the same facts apply; nothing has materially changed; and that Henderson v. Henderson
(1843)3 Hare 100, 67 E.R. 313 (“Henderson v. Henderson”) applies. In submissions, it is contended that the Irrelevant Considerations Ground is also barred by this doctrine. 62. The Applicant contends that the argument is misconceived as, in the original proceedings, the ground that there was no enquiry as to public confidence was not determined and several other points were not ultimately decided in the Supreme Court in Hegarty No. 1. It is also said that it would be absurd if the Irrationality Ground could not now be argued, when it was not decided previously. It is contended that Henderson v. Henderson cannot prevent these arguments now being ventilated. 63. The Applicant emphasises the findings by the Supreme Court in Hegarty No. 1 regarding the scope and extremity of the power in section 14 and argues that the Applicant must be able to challenge any failure to meet the thresholds set by the Supreme Court. It is also said that the Section 51 Notice is a fresh decision. The primary authorities cited by the parties were Henderson v. Henderson and Munnelly v. Hassett [2023] IESC 29. Relevant Authorities 64. In Munnelly v. Hassett the plaintiff’s claim against her former employer was rejected in earlier proceedings, but the plaintiff asserted that the decision of the Circuit Court was based only on the claim of defamation and that other claims (of wrongful dismissal, bullying and harassment) 18 had been pleaded but not determined in those proceedings. There was also a distinct question about the position of the plaintiff as a litigant in person, which has no relevance here. In the later proceedings, the plaintiff sought damages for breach of duty and negligence against the employer and two individual officers/employees of that company, pleading the same facts and allegations on which the first proceedings were premised. 65. O’Donnell C.J. (Dunne, Hogan, Murray and Collins JJ. in agreement) reversed the decision of the High Court, which had ruled Henderson v. Henderson to be inapplicable. O’Donnell C.J. characterised as “[a] useful statement of the rule” the summary by McDonald J. in George and George v. AVA Trade (EU) Ltd. [2019] IEHC 187: “While the Irish cases have accepted that a broad approach should be taken and that the rule should not be applied in an automatic or unconsidered fashion, the Irish courts, in practice, have usually addressed the rule in Henderson v. Henderson by means of a two stage test:(
  1. a)asking, in the first instance, whether an issue could and should have been raised in previous proceedings; and (
  2. b)secondly, if the issue could and should have been raised in previous proceedings, whether this is excused or justified by special circumstances” (at [152]). 66. The Supreme Court found that, when assessing a Henderson v. Henderson objection, a court should not look beyond the pleadings and the order made (at [38], [39]). According to O’Donnell C.J., “[t]he fundamental question, therefore, in any claim of res judicata or invocation of the rule in Henderson v. Henderson is to be determined by reference to the pleadings, which establish what was raised (and by deduction was not raised) and the subsequent order of the relevant Court” (at [38]). Further, “the principal focus of a claim of res judicata or the rule in Henderson v. Henderson is what was decided, not how it was decided” (at [40]). 67. Applying this approach, the Supreme Court found that the earlier claim had been rejected by the Circuit Court and that “there is no doubt about the decision that was made: it was to dismiss Ms. Munnelly’s claim, which must be taken to be the claim in its entirety” (at [32]). The Supreme Court found Henderson v. Henderson did apply, including because the second proceedings in Munnelly raised different matters (claims of breach of duty and negligence) which were not – although could have been – pleaded in the first case. The Supreme Court substituted the High Court order with an order dismissing the proceedings. 19 68. In the course of his judgment, O’Donnell C.J. noted “the modern restatements of the application of the rule in Henderson v. Henderson, have all emphasised the flexibility of the rule and counsel against either a mechanical or overly rigid application of the rule” (at [51]) and that “[i]t can sometimes be a counsel of prudence that a claim like this should at least be permitted to be ventilated, and if necessary, should be defeated on its merits on the field of battle as it were, rather than dismissed on a preliminary issue if that can be achieved without imposing an undue burden on the other party or indeed the court” (at [40]). 69. He continued, “… the adjudication of an application to dismiss proceedings by reference to the rule in Henderson v. Henderson, should proceed in two phases, with different approaches. In the first place, the Court should, in my view, conduct as forensic an exercise as possible to determine what was pleaded and determined in the first set of proceedings, what could have been raised in those proceedings, and what has been raised in the subsequent proceedings. This should involve a precise, and if necessary rigorous analysis of the pleadings and order of the Court. Thereafter, however, the Court should consider whether, even if the circumstances fall within the scope of the rule, the Court should proceed to dismiss the subsequent set of proceedings, which ex hypothesi have never been determined on their merits, and where in some cases, no litigation whatsoever may have previously advanced against the particular party. The Court hearing such an application has, in my view, a degree of latitude in that regard, and there are many circumstances which may lead that court to conclude that notwithstanding the fact that on an analysis the claim is one which falls within the scope of the rule, nevertheless the proceedings should not be dismissed” (at [51]). 70. The correct approach may be summarised as follows: (
  3. a)It is first necessary to analyse the pleadings and the order in the first proceedings, to ascertain whether an issue that is now pleaded was raised before, and if not, whether it could and should have been so raised. If the issue is one which was not (but could and should have been) raised in previous litigation, the rule in Henderson v. Henderson is in principle applicable. (
  4. b)The next step is for a court to decide whether there are countervailing circumstances such that the issue should nonetheless be permitted to be pursued. A good degree of latitude and flexibility are afforded to a court at this stage of the analysis. 20 Assessment 71. I will apply the two-stage approach mandated in Munnelly to the categories of grounds which are the focus of this objection by the Commissioner, namely the Irrelevant Considerations Ground and the Irrationality Ground. 72. Taking the Irrelevant Considerations Grounds first, I have already determined that these grounds are premature and so it is not strictly necessary to assess the Henderson v. Henderson objection. However, for completeness, I will consider this objection on the hypothesis these grounds were not premature and could have been validly advanced. 73. In paragraphs 47, 48, 49 and 50 of the Statement of Grounds, the Applicant makes various specific complaints about matters of fact, law and inference which he asserts are contained in, or omitted from, the Section 51 Notice. When these pleadings are read in light of the High Court and Court of Appeal judgments in Hegarty No.1 (which helpfully set out the content of the Section 14 Notice in some detail at [22] to [26] and [23] to [25] respectively), is it apparent that many of the same findings, statements and matters were included in (or omitted from) the Section 14 Notice. No challenge based on these specific grounds was however pleaded in Hegarty No. 1. To illustrate: both notices contain references to Ms X being “vulnerable”; to conduct and behaviour between 14 and 17 March 2017; to the rights of Ms X to bodily integrity and interference with that bodily integrity by inappropriate sexual activity; to the opinion as to the inappropriateness of Garda Hegarty continuing as a member of An Garda Síochána; and to professionalism. The question of rank was not referenced in either notice. 74. It is apparent to me that, if the Applicant regarded these as valid grounds of challenge (and I reiterate my finding is that they are premature), there is no good reason why they weren’t advanced in 2020, given the closely similar formulation of these matters in the Section 14 Notice and the Section 51 Notice. However, it is only in the Statement of Grounds in these proceedings that any issue has been raised with these – and other – aspects of the content of the notice. I am satisfied that if the Applicant wished to agitate the claims that are now pleaded in the Statement of Grounds about the content of (or omissions from) the notice, including the specific issues pleaded now in the Statement of Grounds, these could have been pleaded in 2020. I am also of the view that these issues should then have been pleaded if the Applicant (who has at all times been legally represented) believed them to be meritorious. This was not done. The rule in Henderson v. Henderson is therefore engaged. 75. Turning to the second stage of the analysis mandated by Munnelly, I am not aware of any relevant countervailing circumstances which warrant permitting the Irrelevant Considerations 21 Grounds to now be pursued in judicial review proceedings. The importance of finality militates against a finding that the Applicant should be able to pursue grounds now which could and should have been litigated in 2020 but which – for no apparent or stated reason - were not. The Irrelevant Considerations Grounds do not hinge on or concern the Supreme Court judgment in Hegarty No. 1 or other intervening developments or events. Moreover, I have already found these grounds to be premature and capable of being advanced by way of submissions to the Commissioner under section 51(c). I am of the view that it is not appropriate to permit of the possibility that the Applicant could seek relief based on the specific grounds pleaded in paragraphs 47, 48, 49 and 50 of the Statement of Grounds. 76. There is one specific issue that emerged at hearing under the general rubric of the Irrelevant Considerations Ground. This is the question of the need for an inquiry to establish facts underlying the Section 51 Notice, such as the “fact” that Ms X was vulnerable. This contention was first advanced in oral submissions on behalf of the Applicant. It is not pleaded and is excluded on that basis. Further and in any event, as counsel for the Commissioner pointed out, any such argument about the need for a further factual inquiry is caught and barred – together with the Irrelevant Considerations Ground generally – by the rule in Henderson v. Henderson. 77. Turning then to the Irrationality Ground, the first question is whether the Irrationality Ground could have been pleaded in Hegarty No. 1. It is common case that the matters pleaded now in paragraphs [42] to [45] of the Statement of Grounds were not previously pleaded in Hegarty No. 1. It is also indisputable that both Hegarty No. 1 and these proceedings are based on the same conduct, the same facts, and the opinion of the Commissioner is framed in substantially the same terms in both the Section 14 Notice and the Section 51 Notice. The legal provisions governing each are also materially the same. Supt. Hoey swears that it is the same opinion that was held at all times by the Commissioner (although I attach little weight to his averments regarding the Commissioner’s opinions, as will be explained). If the Irrationality Ground had been pleaded and determined against the Applicant in Hegarty No. 1, I am satisfied that any attempt to re-agitate the same claim in these proceedings could not be maintained. Such a decision on the Section 14 Notice would be decisive and binding in any attempted challenge to the Section 51 Notice, given the factors already identified. 78. In these circumstances, I do not accept the Applicant’s contention that the Section 51 Notice is a separate decision such that the rule of Henderson v. Henderson cannot be engaged. I am satisfied that the claims made in paragraphs 42 to 45 of the Statement of Grounds could have been pleaded in Hegarty No. 1. The Applicant could have made arguments to the effect that the admitted conduct was not sufficiently serious for the exercise of the Commissioner’s power under section 14 and that it was disproportionate and irrational for the Commissioner to exercise 22 the power conferred by that provision. The same facts pertained and the arguments now being advanced could have been made in 2020. 79. This leads to be next step in the Munnelly test which is whether the Applicant should have pleaded those claims in Hegarty No. 1. In this regard, I consider it necessary to more closely examine the pleadings in this case. The Statement of Grounds refers to “the absolutely exceptional nature of the jurisdiction under section 51” and it is pleaded that “the circumstances herein have not been shown to be sufficiently unusual, extreme or exceptional”. These grounds as pleaded are clearly based on the important judgment of the Supreme Court in Hegarty No. 1 and, while those grounds could have been argued in that case, a finding that they “should” have been argued then is more elusive. The importance of Hegarty No. 1 for any case hinging on section 51 is undeniable and I do allow for its impact here. I do not believe the Applicant can fairly have been expected to argue that his conduct did not meet the exceptional threshold applicable under section 14 before the exceptional nature and high threshold for the exercise of that power had been authoritatively determined by the Supreme Court in July 2025. 80. Even if it could be said that the Applicant should have raised these claims in 2020 such that Henderson v. Henderson applies (which is not my view) the next question would be whether there are countervailing circumstances which warrant the claims nonetheless being pursued. If this second stage of the analysis was reached, I would be satisfied that the intervening delivery of the judgment of the Supreme Court in Hegarty No. 1 is an important circumstance and that the Applicant should be entitled to pursue the Irrationality Ground in light of that judgment. It is also of some (albeit considerably less influential) relevance that most of the claims are proceeding; the preliminary issues were presented and heard in the same hearing as the substantive grounds of appeal; and costs and court time have been expended regardless of whether the Irrationality Ground proceeds. Consequently, the Irrationality Ground has been pleaded, argued and heard and I do not see that it is an undue burden for the Commissioner for this ground to proceed to determination. As against this, I perceive a real risk of an unjust outcome if the Applicant was deprived of the right to make a claim challenging the sufficiency of the grounds of the Section 51 Notice on the basis of the statements of the law in the Supreme Court judgment in Hegarty No. 1. 81. Before leaving the question of Henderson v. Henderson, I note the Applicant’s contention that grounds such as the Public Confidence Ground (or at least one aspect of that ground, concerning the alleged need to have an inquiry as to public confidence) were not determined in Hegarty No. 1 and cannot now be barred by Henderson v. Henderson. It was not wholly apparent to me that the Commissioner was making this preliminary objection with regard to the Public Confidence Ground (and it certainly was not pleaded), but for the avoidance of doubt, I would 23 not accede to such an objection for the same reason I reject this attempt with regard to the Irrationality Ground. By way of broad summary, the law has been clarified in Hegarty No. 1 and I regard this to be a circumstance which would justify allowing some latitude for this ground to now proceed. I should observe however that this is not because the non- determination of the ground in Hegarty No. 1 precludes the application of Henderson v. Henderson (a point which was made on behalf of the Applicant in oral submissions). On the contrary, the judgment of O’Donnell in Munnelly emphasises that res judicata or Henderson v. Henderson objections should be framed primarily by the pleadings and ultimate order in the first proceedings, and not a more granular assessment of the issues. Accordingly, whether the Public Confidence Ground (or an aspect of that ground) was separately decided in Hegarty No. 1 does not determine whether it can be ventilated again in these proceedings. (
  5. c)Evidential Objection 82. The Applicant contends that Supt. Hoey lacks the means of knowledge to swear affidavits in these proceedings. Supt. Hoey is a Garda Superintendent in the area of internal affairs. His areas of responsibility are stated on affidavit to include the administration of disciplinary processes and suspensions on behalf of the Commissioner. He states in the opening paragraphs of his affidavit that he makes the affidavit for and on behalf of the Commissioner and with his authority and that he has read and is familiar with “the relevant investigation file in respect of the Applicant” and that he is “fully conversant with the issues which are the subject of the within proceedings”. 83. The Applicant’s objection (particularly in the replying affidavit sworn by him on 24 October 2025) is that Supt. Hoey cannot make averments about the opinion of the Commissioner or state the reasons for the Commissioner’s belief. He asserts that the court cannot accept that evidence and that Supt. Hoey has no authority to speak for either Commissioner or to make any substantive disciplinary decisions concerning him. The Applicant relies on the judgment of Heslin J. in Keane v. Commissioner [2021] IEHC 577 (“Keane”). 84. Supt. Hoey points out in his replying affidavit that he worked closely with Assistant Commissioner Roberts, to whom the power to suspend had been delegated and who in turn reports to the Commissioner in relation to suspensions of members. He also states that he worked closely with Assistant Commissioner Roberts in the preparation of documentation which was sent to the Applicant regarding the suspension and issue of the Section 51 Notice. He makes further averments about the views of the Commissioner and states “the Commissioner accepts that the issue of the locked door was not put to the Applicant in the letter 24 dated 15 August 2025, which said letter sets the parameters for the consideration of the s.51 issues in this case”. 85. The position of the Commissioner in oral submissions on this point is that the Commissioner does not generally swear affidavits, that he is too busy to do so; and that the Applicant wants an affidavit so they can cross-examine the Commissioner. 86. The Applicant asserted in reply that the Commissioner should give evidence to put the relevant material before the Court; that there is no legal basis to suggest the Commissioner should not or could not do so; and that the risk of cross-examination is not a good reason for Commissioner not to go on affidavit. Assessment 87. The only affidavits sworn in these proceedings on behalf of the Commissioner are sworn by Supt. Hoey. He explains his means of knowledge, stating that he has reviewed and is familiar with “the relevant investigation file” and is “fully conversant” with the issues raised in these proceedings. If the affidavits were limited to exhibiting documentation and attesting to the objective facts of the process as they appear from the documentation reviewed, this would not be problematic. However, Supt. Hoey makes several averments about the opinions of the Commissioner and the reasons for the decisions to issue the Section 14 Notice and the Section 51 Notice. For example, he avers that “[t]he basis for the Commissioner’s view that the Applicant’s dismissal is necessary has always been the same…” and that “[t]he Commissioner had always been of the view that the Applicant’s conduct rendered him unfit for membership of the force and consistently held the view that the Applicant’s continued membership would undermine public confidence in the force, and that dismissal was necessary to maintain that confidence”. He addresses what the Commissioner “believes” and “the reasons for this belief”. Supt. Hoey also makes averments to the effect that it was “entirely logical and rational” for the Commissioner to invoke section 51. 88. While there is no reason whatsoever to doubt that Supt. Hoey was endeavouring in good faith to present material relevant to these proceedings, there are certain evidential issues with the approach taken by the Respondent. 89. Throughout his affidavits, Supt. Hoey refers to “the Commissioner” and to the beliefs and the opinion of the Commissioner, but he never indicates whether or how he has any insight into the Commissioner’s thought processes or beliefs. He does mention that he worked closely with Assistant Commissioner Roberts, but there is no reference to working, or even conversing, with the Commissioner. There is simply no evidence as to how Supt. Hoey can assert to have an 25 insight into, or knowledge of, the opinions of the Commissioner or the basis for those opinions. I do not regard his evidence on these points to be of assistance in these proceedings. 90. This is compounded by the fact that, on 1 September 2025, Drew Harris resigned as commissioner and was replaced by Justin Kelly. Without mentioning this fact, Supt. Hoey states on affidavit that “[t]he Commissioner has always been of the view”; the Commissioner “consistently held the view” and his opinion “has always been the same”. There is an obvious question as to how Supt. Hoey can swear that “the Commissioner” has always been of the same view, given the present Commissioner was not in office when the Section 14 or Section 15 Notices were issued. 91. In my view, if the Respondent wished to present evidence about the opinion of “the Commissioner” when the Section 51 Notice was issued, the then Commissioner responsible for issuing that notice should have sworn an affidavit addressing his opinion. If the Respondent wished to present evidence of the opinion of the present Commissioner, then that individual should have sworn an affidavit to that effect. This is not a finding that either individual must swear an affidavit in this or in any other case. It is instead a recognition of the truly exceptional nature of the power of the Commissioner under section 51, as emphasised heavily and repeatedly by the Supreme Court in Hegarty No. 1. It is a power rarely to be exercised. If evidence concerning the Commissioner’s opinion in so weighty and extreme a matter is to be presented in defence of judicial review proceedings of this nature, it should be the evidence of the Commissioner himself. In this regard, I do not accept that it is sufficient to suggest (as it was in oral submissions) that the Commissioner does not have time to swear affidavits in proceedings of this nature. Indeed, in Baynham (which is addressed in more detail later), seventeen affidavits were sworn including – notably - an affidavit by Assistant Commissioner Clavin, despite having retired at the time that he swore his affidavit. It also appears from Hegarty No. 1 that the Commissioner himself swore an affidavit of discovery in those proceedings ([2021] IECA 328). 92. A similar evidential situation arose in Keane. In that case, like here, the Commissioner exercised the power of dismissal on the ground it was necessary to maintain public confidence in An Garda Síochána, but chose not to swear an affidavit in the judicial review proceedings challenging that decision. An admissibility objection was made to the affidavit evidence of a Garda Chief Superintendent. While Heslin J. did not base his judgment on this admissibility question, the following comments resonate here: “It seems to me that the respondent is the only person who can aver as to what opinion they hold. There is no suggestion whatsoever that Chief Superintendent Nugent is 26 acting other than in good faith, but it seems to me that she cannot possibly verify, by affidavit, what opinion the respondent holds” (at [46]). 93. I share this view here. This does not apply to all aspects of Supt. Hoey’s affidavits: insofar as he discusses the delegation of the powers of the Commissioner and provides sworn evidence about the suspension process and the materials that have been furnished to the Applicant, he does so on the basis of stated means of knowledge (such as review of documentation) and from working closely with Assistant Commissioner Roberts. However, this question of delegation has no relevance to the Section 51 Notice, it being common case that the power under section 51 can never be delegated. In summary, on the basis of his stated means of knowledge, the affidavit of Supt. Hoey cannot be accepted as evidence concerning the opinion held by the Commissioner when issuing the Section 51 Notice or as evidence of the opinion of the present Commissioner. I am of the view that no probative weight can be attached to Supt. Hoey’s averments about such opinions or the reasons for same. 94. A final observation I would make is that the Applicant is critical of the inclusion of submission, argument and denials in the affidavits of Supt. Hoey. There is some merit to the objection to non-factual averments, such as argument and legal conclusions in Supt. Hoey’s affidavit. In particular, I do not find Supt. Hoey’s opinions as to the merits of the proceedings, including his opinion as to whether it was rational for the Commissioner to invoke section 51, to be of assistance in determining these proceedings and do not attach weight to same. F. GROUNDS OF REVIEW (
  6. a)Commissioner Ground 95. The Applicant contends that the opinion that grounded the Section 51 Notice was the opinion of Mr Drew Harris as then Commissioner of An Garda Síochána; that it was his subjective opinion and that it cannot be inherited or adopted by, or fixed upon, another individual who subsequently occupies the office of Garda Commissioner. There are questions raised as to why this Notice was issued, when the then-Commissioner knew that he would not be in office to pursue it and as to why the newly appointed Commissioner did not form his own opinion for the purposes of section 51. It is said that there is no authority for the proposition that a subjective, personal opinion of one commissioner, can be continued or adopted by another commissioner. The case made is that the Applicant has the right to challenge the relevant commissioner and the material considered by that specific person in making that opinion and that only one and same commissioner can initiate and see through a process under section 51. 27 96. The Applicant places heavy emphasis on the references to “his opinion” rather than “the opinion” in section 51 and on the fact that this provision does not reference the “office of the Garda Commissioner”. These formulations are said to be inconsistent with one individual occupying the office of Commissioner forming the initial opinion and then a different individual in that position continuing the dismissal process. It is said that the corporate authority of the Commissioner does not apply. In short, the Applicant contends for a rather strict, narrow interpretation of the language of section 51. According to his interpretation of that provision, it is limited to an individual standing appointed to the office of Garda Commissioner at a point in time and a successor or replacement as Commissioner cannot continue a process commenced by another Commissioner. 97. The Respondent disputes this position. He relies on section 22
(2)of the Interpretation Act 2005 and asserts that there is no authority for the proposition that a newly-appointed commissioner could not make a decision to proceed with the section 51 process. It is argued that the Commissioner is clearly an office-holder and that the Applicant fails to respond to the case that the Commissioner is a corporation sole. The position argued on behalf of the Commissioner is that the decision is a personal, subjective decision of the commissioner then in office and that section 22
(2)creates the continuity that is required for the effectiveness of the functions conferred on the Commissioner. It is argued that the decision under section 51 is made by the Commissioner in his capacity as such and that the nature of the power does not alter that fact and that section 22
(2)must apply. There is also reliance on the presumption of validity of administrative decisions.
  1. In reply, the Applicant submits that the Commissioner does not address the language of section 51 which refers to the Commissioner “remaining of the opinion” and how this is inconsistent with a situation in which the commissioner in question never held that opinion. It is said that this is a unitary process and cannot be dissembled. Assessment
  2. This ground depends primarily on the construction of the statutory language of section
  3. The correct approach to that interpretative exercise is well-established. I do not repeat the dicta of Murray J. in Heather Hill Management Company CLG v An Bord Pleanala [2024] 2 IR 222 here, but summarise the correct approach here for convenience as a task of interpreting the language used in the section in light of the statute as a whole, an exercise which should sometimes be informed by reliable and identifiable background contextual information and/or the application of established rules of interpretation. 28
  4. The starting point is the language of the section. Section 51 – it may be convenient to recall – provides that: “Without prejudice to the Performance Regulations and the Conduct Regulations, the Garda Commissioner may dismiss from An Garda Síochána a member below the rank of chief superintendent where— (a) by reason of the member’s conduct (which includes any act or omission) the Garda Commissioner is of the opinion that— (i) the member’s continued membership would undermine public confidence in An Garda Síochána, and (ii) the dismissal of the member is necessary to maintain that confidence, … (d) the Garda Commissioner has considered any submissions made by, or on behalf of, the person under paragraph (c), and remains of his or her opinion.”
  5. The language of the section is not particularly illuminating on the question of whether the same individual commissioner must form the initial opinion and then the conclusion. This provision must be construed in the context of the 2024 Act as a whole. Some provisions that appear to me to be relevant to this exercise are: - Section 26
(1): “Subject to this section, the appointment of a person as the Garda Commissioner shall be made by the Government”. - Section 28
(1): “Subject to this section, the appropriate Deputy Garda Commissioner may perform the functions of the Garda Commissioner during any period when the Garda Commissioner is unable to perform his or her functions”. - Section 28
(4): “Where—(
  1. a)the Garda Commissioner is unable to perform his or her functions, and (
  2. b)each Deputy Garda Commissioner is likewise so unable, the Minister may designate an Assistant Garda Commissioner to perform the functions of the Garda Commissioner during the period that the Garda Commissioner and each Deputy Garda Commissioner are so unable..” - Section 28
(11)“In this section— (
  1. a)a reference to the Garda Commissioner being unable to perform his or her functions means— (
  2. i)the Garda Commissioner being absent, incapacitated or suspended from duty, or (
  3. ii)the office of Garda Commissioner being vacant..” 29 - Section 33
(1): “Subject to this Act, the Garda Commissioner shall have the following functions: (
  1. a)to ensure that An Garda Síochána carries out its functions…. (
  2. g)to perform any other functions that are assigned to him or her by or under this Act or any other enactment.” 102. I would pause here to note that the clear intention of section 28 is that there will be a person in a position to perform the functions of the Garda Commissioner under the 2024 Act or any other enactment if the Commissioner is unable to do so for whatever reason, including during a period when that office is vacant. This includes all functions assigned to the Commissioner under the 2024 Act, without distinction or qualification. Section 51 is clearly among the functions of the Commissioner (and there was no suggestion made to the contrary). 103. Other important indicators of the nature of the role of the Commissioner are contained in section 40 of the 2024 Act: “
(1)Subject to this Act and such limitations, restrictions or conditions as may be contained in regulations (if any) under section 254
(1)(o), the Garda Commissioner may, for the purposes of performing his or her functions in relation to the administration and business of An Garda Síochána— (
  1. a)enter into a contract on behalf of An Garda Síochána with any person or body concerning any matter arising in relation to those functions… (
  2. c)do any other thing necessary for enabling the Garda Commissioner to perform those functions.
(2)Subject to the consent of the Minister and the Minister for Public Expenditure, National Development Plan Delivery and Reform, the power conferred by subsection
(1)(a) includes the power to enter into a contract relating to land or an interest in land or any other property.
(3)The Garda Commissioner may sue and be sued in the name of his or her office.
(4)A contract entered into under this section by a person holding the office of Garda Commissioner is binding on and enforceable by that person and his or her successors in office, but neither that person nor any successor in office is personally liable on the contract.” 104. The points I derive from these provisions of the 2024 Act are the following: (
  1. a)The Commissioner may sue and be sued in the name of his or her office; 30 (
  2. b)The Commissioner may enter contracts while holding that office which are binding on successors in office; (
  3. c)If the Commissioner is unable to discharge any functions under the Act (without limitation), there are mechanisms for other persons to do so. 105. Each of these points disfavours the strict, literal interpretation of the words “the opinion” and “remains of his or her opinion” for which the Applicant advocates. 106. Turning next to relevant rules of construction, section 22
(2)of the Interpretation Act 2005 provides, “a power conferred by an enactment on the holder of an office as that holder shall be deemed to be conferred on, and may accordingly be exercised by, the holder for the time being of that office”. This is relied upon by the Commissioner here and I am satisfied that it is a relevant and useful principle of construction; that it does apply here; and that it further confirms the interpretation that the power conferred by section 51
(1)may be exercised by whoever is the holder of the office of Commissioner for the time being. 107. One particular point of interpretation that also arose here is whether the Commissioner is a “corporation sole”. On behalf of the Commissioner, it is contended that he is – or should be regarded as - such. The difficulty is that section 40 does not state that the Commissioner is a corporation sole. This can be contrasted with other office-holders. For example, the Companies Act 2014 in section 945
(5)provides that “[t]he Director [of Corporate Enforcement] shall be a corporation sole and, notwithstanding any casual vacancy in the office from time to time, shall have perpetual succession and shall be capable in his or her corporate name of holding and disposing of real or personal property and of suing and being sued.” 108. Similarly, the Freedom of Information Act 2014, section 43
(2), provides that “[t]he [Information] Commissioner shall be a corporation sole with perpetual succession and an official seal and with power— (
  1. a)to sue and be sued, and (
  2. b)with the consent of the Minister and the Minister for Finance, to acquire, hold and dispose of land or an interest in land, and to acquire, hold and dispose of any other property.” 109. A more recent example of such language can be seen in the Protected Disclosures (Amendment) Act 2022, section 10A
(3): “[t]he [Protected Disclosures] Commissioner shall be a corporation sole with perpetual succession and an official seal and with power— (
  1. a)to sue and be sued, and 31 (
  2. b)with the consent of the Minister and the Minister for Finance, to acquire, hold and dispose of land or an interest in land, and to acquire, hold and dispose of any other property.” 110. The point made in the Commissioner’s written submissions is that, while the Commissioner is not stated in the 2024 Act to be a “corporation sole”, his status as such is apparent from the Act and it is not necessary for it to be stated. I do not quite agree that it can be regarded as obvious that the Commissioner is a “corporation sole”, as contended. The Oireachtas chose the language that appears in section 40 to describe the office of the Commissioner. Accordingly, the Commissioner may enter into contracts on behalf of An Garda Síochána for the purpose of any of his functions, including contracts related to land or other property; a contract so entered is binding on, or enforceable by, successors in the office; a Commissioner has no personal liability on such contracts; and the Commissioner may sue and be sued in the name of his or her office. These attributes of perpetual succession and separate legal personality are important features of the office of Commissioner and are among the indicia of a corporation sole. The Commissioner cites Craies on Legislation (12th ed, 2020 at [13.1.15]) as follows: “it is possible for a person other than a body to [be] incorporated as a corporation sole. The effect is to confer legal personality and the attribute of perpetual succession.” 111. The parallels between the Commissioner and a corporation sole are readily apparent. However, the fact is that, by contrast with the other office-holders referenced above, the Commissioner is not expressly designated by statute as a corporation sole with a seal. It is not fully apparent to me what, if any, implications flow from this distinction and I am satisfied that it is not an issue with which I need to grapple here. For clarity, however, I make no determination that the Commissioner is to be regarded as a corporation sole or as to whether the non-designation of that office as such in the 2024 Act is because modern practice disfavours that drafting technique (recalling the Protected Disclosures (Amendment) Act 2022 above). Such questions may need to – and can then – be determined in another case. 112. The question I do need to answer is whether a person occupying the office of Commissioner can continue a section 51 process that was commenced by their predecessor. I am satisfied from a consideration of the language of section 51 read in its immediate and broader statutory context and in light of the principle of construction in section 22
(1)of the Interpretation Act 2005 that a Commissioner may initiate the process under section 51 and the process may be continued and concluded by a subsequent holder of that office. This does not of course mean that the newly-appointed Commissioner would be bound by the opinion of their predecessor or otherwise restricted as to the opinion that may be arrived at, following due consideration of any submissions received. On the contrary, the Commissioner who makes the final decision under 32 section 51 would and must be free to ultimately decide that they do not remain of the same opinion that the holder of that office previously held. The salient point is that the process can continue and be concluded by a different individual occupying the same office.
  1. I therefore reject the strict literal interpretation urged by the Applicant here. The wording of section 51(d) that “the Garda Commissioner has considered any submissions made by, or on behalf of, the person under paragraph (c), and remains of his or her opinion” must be read in light of the nature of the office of the Commissioner; the responsibilities and powers that are attendant on that specific office; and the overall statutory context which unambiguously aims to ensure continuity of functions as between successive commissioners. I do not believe it is consistent with the 2024 Act as a whole to interpret those words as limiting the “opinion” referenced in section 51 to the personal opinion of the person who held the office of commissioner when the process was initiated. Rather, the correct question is whether the opinion that was held by the Commissioner when the notice was issued remains the opinion of the Commissioner who is in office following receipt and consideration of submissions. This is consistent with the overarching premise of the Act, which is that there should be continuity in the discharge of the functions of the Commissioner and considerations of public confidence in An Garda Síochána are quintessentially and integrally matters for the Commissioner then in office to weigh and protect at a particular point in time.
  2. This interpretation is also bolstered by a consideration of the practical implications of the Applicant’s case: if an incumbent commissioner died suddenly and was replaced by a new commissioner during the currency of a section 51 process, for example, it would seem incongruous with the 2024 Act as a whole (particularly the several provisions designed to ensure continuity and succession in the discharge of the functions of Commissioner) if that process could not be continued. This is not to say that the words of section 51 are drafted so as to specifically accommodate the possibility of a change in officer-holder during a section 51 process, but rather that the construction of section 51 for which the Applicant contends is not consistent with the provision read in its overall legislative context.
  3. Before concluding this ground, I note that some weight was attached by the Applicant to the following statements in the judgment of the Supreme Court in Hegarty No. 1: “42… The power vested in the Commissioner by s. 14
(2)is of thus of crucial importance, and the responsibility invested it the Commissioner when exercising it, immense. An Garda Síochána is a unitary disciplined force with a hierarchical command structure. The Commissioner cannot be compared to a CEO or chairman of a board of directors. He has direct personal powers and responsibilities. In making a 33 decision under the section, the Commissioner is not concerned with the internal, disciplinary or punitive aspect, but with the broader, external question of the maintenance of public confidence.” 116. That paragraph is one of several in the judgment of Murray J. which emphasise the exceptional nature of the power conferred by section 51. It also underlines the importance of this extreme power being specifically conferred on the person occupying the office of Commissioner, and not capable of being shared with others, delegated or discharged by committee. The vital ultimate function of protecting public confidence in An Garda Síochána is vested in the Commissioner alone and exists independently of any other disciplinary processes within An Garda Síochána. As Murray J. notes, the Commissioner has direct personal powers. Of course, these powers are only held for so long as the person holds that office. Accordingly, the person holding the office of Commissioner must form the opinion necessary to initiate the section 51 process and the person then holding that office must make the final decision under that provision. The question of the transfer of responsibilities or functions between successive holders of the office of commissioner was not an issue in Hegarty No. 1 and I do not read paragraph [42] as a comment on the question. I certainly do not read it as supporting the construction that, if the person then holding the office of Commissioner forms the necessary opinion to initiate the section 51 process, this statutory process cannot be concluded by a successor in the office of Commissioner. I do not believe that is an interpretation of section 51 which finds support in the language of that provision, read in the context of the 2024 Act as a whole, or in the judgment in Hegarty No. 1. 117. The Commissioner Ground is rejected. (
  1. b)Irrationality Ground 118. The position of the Applicant is that the conduct admitted by the Applicant is inherently not sufficiently serious for section 51 to be invoked and that it was irrational, ultra vires and unlawful for the Commissioner to form the view that he did. This ground is necessarily premised on an argument that the admitted misconduct cannot on any view suffice, that no reasonable person in the position of the Commissioner could determine that the Applicant’s misconduct allows for the formation of the opinions required by section 51. The Applicant does not shy away from this and asserts in written submissions, for example, that his misconduct “comes nowhere close to the proper ambit of section 51”. He relies heavily on the characterisation by the Supreme Court in Hegarty No. 1 of the power under section 51 and the conduct required for its exercise. 34 119. The Commissioner contests this ground, pleading that the power of dismissal is conferred on the Commissioner and it is the Commissioner alone who can determine whether section 51 is met. The argument of irrationality is said not to be credible. Assessment 120. The Applicant is asking this Court to find that the misconduct he engaged in - sexual interaction with a young woman who attended a Garda station for the purpose of making a witness statement – cannot be regarded by any sensible or rational person in the position of the Commissioner as serious enough to invoke section 51. I do not believe this is a meritorious ground of judicial review. 121. In making this finding, I am mindful that of the decision in Hegarty No. 1 that the power under section 51 is “an extreme power to be resorted to only in.. wholly exceptional situation[s]” (at [76]); that the power “can only be exercised in circumstances that are truly exceptional and where the relationship between the conduct and concerns of public confidence is clear and pressing” (at [52]); and that the conduct in question must “be of sufficient gravity to reasonably justify dismissal” (at [36]). Even when the exceptional and extreme nature of the power conferred by section 51 is weighed, I see no basis for the finding of irrationality urged by the Applicant. The Oireachtas has conferred a specific power on the Commissioner with a view to ensuring the protection of public confidence in An Garda Síochána. It must be a matter within the rational discretion of the Commissioner to decide in each case on a properly reasoned basis having regard to all relevant circumstances and in full compliance with the requirements of fair procedures and constitutional justice whether the very high bar described in Hegarty No. 1 has been met. 122. Even having regard to the very high threshold inherent in section 51, it would be problematic and – in my view inappropriate - for a court to attempt to label certain types of conduct as intrinsically lacking the gravity required for the exercise of that important power. Indeed, I note that the Applicant’s position in written submissions is that it is “not permissible to mark out in general and in advance the types of conduct which the Commissioner will subject to section 51”. I agree that it would not be appropriate to attempt to prescribe types or categories of conduct which are either within or beyond the remit of section 51. Further, section 51 is a broadly-drawn provision and its plain language does not support such carve-outs or limitations. Even if such a presumptive approach could be contemplated, I would not accept the Applicant’s stated position that the type of misconduct he engaged in here – sexual interaction with a young female witness in a Garda station while taking her statement – “comes nowhere close to the proper ambit of section 51” such that it should be generically excluded from the scope of that 35 provision. That would be a restriction on the important power conferred on the Commissioner by the Oireachtas and one for which I see no valid basis in law or in fact. The argument that the Applicant’s misconduct was by its very nature not unusual or exceptional enough to be capable of meeting the undoubtedly very high bar required for section 51, such that it was irrational for the Commissioner to form the opinion he did, is, for the avoidance of doubt, rejected. 123. In short, I reject the argument that it was irrational, ultra vires or unlawful for the Commissioner to invoke section 51 in the specific circumstances of this case. 124. This conclusion is based on the application of standard principles of judicial review and not the payment of any heightened deference to the Commissioner. Indeed, such deference was ruled out by the Supreme Court in Hegarty No. 1 (at [78]). It should also be observed that this is not a decision on the sufficiency of the reasons given for the Commissioner’s opinion. As I have already noted, there is no properly pleaded claim of a failure to give reasons and, even if there was, any such claim would be premature. (
  2. c)Materials Ground 125. The stated position of the Applicant is that these proceedings would not have been pursued if the material requested had been furnished. This ground is therefore central to the proceedings. The relief sought is “a declaration that the Applicant is entitled to have sight of all material considered by the Respondent in issuing a notice pursuant to section 51 Policing, Security and Community Safety Act 2024”. 126. The request for materials was first made on 26 August 2025 following receipt of the Section 51 Notice. The letter sent by the Applicant’s solicitors on that date requested “a copy of all materials relied upon” by the Commissioner when forming the necessary opinion. The Commissioner’s response on 1 September 2025 was that there is no provision of the 2024 Act for the provision of a copy of “all materials” relied upon by the Commissioner. The Applicant’s solicitors further replied on 4 September 2025, repeating the request that the Commissioner should provide “the materials relied upon in forming” the opinion. It was pointed out that the Notice includes statements that Ms X was vulnerable, which was said not to be an established fact. It is inferred from this that “the Commissioner appears to have in his possession other materials”. It is also said in that letter that the Applicant needs materials which established the fact that dismissal was necessary to maintain confidence (referencing the judgment of the Supreme Court in Hegarty No. 1). The Applicant contends that the materials sought are necessary to enable proper submissions to be made. 36 127. The Statement of Grounds includes the pleading that the need to explain “the basis” for the opinion includes an obligation to provide the “materials canvassed and relied upon” by the Commissioner. The order sought is a declaration that the Applicant is “entitled to have sight of all material considered” by the Commissioner in issuing the Section 51 Notice. The affidavit of Garda Hegarty grounding that statement includes the averment that, in the context of the board of inquiry investigation, “I was provided with disclosure of materials and evidence concerning” the matters alleged and “I accept that I was guilty of misconduct as set out” by the board. He then states on affidavit that without the materials sought regarding the opinion under section 51 and the suspension, he was “unable to make fulsome and fully informed submissions”. The exhibits to his grounding affidavit total some 90 pages of documentation and include what is described as “a bundle of evidence and statements provided to me as part of the disciplinary process”; memos of interviews; various notices; the statement of facts; the decision of the appeal board; and the report of the presiding officer of the board of inquiry. 128. The Respondent pleads in the Statement of Opposition that “the fact that the Applicant has not received purported materials relied upon by the Commissioner in forming that opinion is in no way a breach of fair procedures”. 129. In his replying affidavit, Garda Hegarty then states, “I say that do not know what information and/or evidence was relied upon in forming an opinion under section 51 of the 2024 Act. I say that without access to the materials which I sought before commencing these proceedings I cannot effectively and fully address in submissions the question whether the Respondent ought to dismiss me.” The reference to the information “relied upon” is notable in the context of the arguments made in oral submissions. 130. The reply by Supt. Hoey is as follows: “The materials — which the Applicant already has in his possession underpinning the Commissioner’s decision (and which I in turn am familiar with) are: (
  3. i)The investigation file provided to the Applicant in advance of the Board of Inquiry (indeed, Section 2(
  4. iv)of the supplemental submissions made by the Applicants solicitor to the Appeal Board expressly records him having been provided with the investigation file prior to the Board of Inquiry); (
  5. ii)The documentation which was before the Board of Inquiry in 2018; (iii) The documentation which was before the Appeal Board in 2019; 37 (
  6. iv)The documentation which was before the High Court in respect of the first set of proceedings initiated by the Applicant; (
  7. v)The documentation which was before the Court of Appeal in respect of the first set of proceedings initiated by the Applicant; and (
  8. vi)The documentation which was before the Supreme Court in respect of the first set of proceedings initiated by the Applicant.” 131. He also asserts that “[t]he Applicant is in no doubt about what led to the Commissioner’s decision to invoke s.51 and suspend him, and he has the requisite documentation which provides the rationale for those decisions”. Parties’ submissions 132. The position of the Applicant in written submissions is that fair procedures required the disclosure of the documents “relied upon”. It is then said that, “[t]he Respondent’s pleadings and arguments tediously assert repeatedly the applicant “knows well” why section 51 has been commenced but continues to hide and obscure the material the Commissioner considered in reaching the decision. As the Applicant does not know what materials were relied upon by the Commissioner and cannot effectively make submissions without sight of same.” There is again emphasis on the documentation “relied upon” (as in the Statement of Grounds and the affidavits). 133. The oral submission made by the Applicant is that his request for documentation that was considered by the Respondent was refused out of hand. He disputes the proposition that he had the relevant material, arguing that there is a difference between materials “considered” in making the decision and the documentation “relied on” or “underpinning” it. Particular emphasis is placed on the word “underpinning” which is used in Supt. Hoey’s second affidavit. It is said that this is narrower than what was “considered”. 134. It is also said that it is not sufficient for the Commissioner to assert - as he does - that the Applicant “knows well” the reasons for the decision, and that the Applicant is entitled to know exactly what the Commissioner was told and material which was considered, whether it supported the decision in question or not. The fundamental point made is that the Applicant should see everything which the Commissioner was furnished with and considered before issuing the Section 51 Notice. It is contended that this is necessary for the Applicant to be able to exercise the right to make submissions and that the refusal to give the documentation considered had an impact on the rights to fair procedures, the right to invoke section 51 and on 38 the prematurity objection raised. It is said to be a breach of his rights under Re Haughey [1971] IR 217. There is a specific allegation that there was a failure to disclose information to the Court and a breach of the obligation of candour. 135. In reply, the overriding position of the Commissioner is that the Applicant has all of the material underpinning the decision, the material that is necessary and relevant and that he is not entitled to further materials. He has the disciplinary file, all of the appendices and there is no basis, according to the Commissioner, to suggest that he lacks anything relevant. 136. It is said that the Appellant “knows well” the basis for the decision under section 51 and has not pointed to any aspect of the Section 51 Notice which he cannot deal with. It is said that there is no requirement under the Act or otherwise to disclose every item before the Commissioner, and no legal obligation on the Commission to compile a list of everything considered. The Commissioner’s position is that this is an unprecedented submission, and is not what the Oireachtas envisaged in section 51. It is also submitted that Garda Hegarty was not prevented from dealing fully with Hegarty No. 1, that there was no suggestion that there was additional documentation he did not have, that the Applicant proceeded then on the basis of the same documents, and never contended before that the facts went outside the process. 137. The Commissioner contends that the core facts are that the Applicant engaged in a sexual act with a witness in a garda station and that the inferences to be drawn from, and impact of, this can be addressed in submissions. It is also pointed out that the facts relied upon are those stated in the Notice and the Applicant can bring in anything he wants by way of reply. It is said that the relevant question here is prejudice and the Applicant can point to no prejudice from not obtaining the documents sought. Re Haughey is said not to be applicable. Assessment 138. It should be noted that at the out-set that this is not a discovery application. The question is not whether the documents are relevant and necessary for the fair disposition of these – or any other – proceedings, but rather whether there has been a violation of the rights of the Applicant and whether the documents are necessary to ensure the protection of the Applicant’s undoubted rights to fair procedures. 139. In assessing this question, two overriding points are important: first, the basic facts of the misconduct are relatively net and are admitted by the Applicant and, second, the Applicant has already obtained a notable volume of documentation related to this matter, both through the disciplinary process and through discovery obtained in Hegarty No. 1. In a judgment granting limited leave to cross-examine the then-deponent on behalf of the Commissioner, Chief 39 Superintendent Nugent, Hyland J. referenced the consent order for discovery which was made in those proceedings on 24 November 2020 ([2021] IEHC 190). There was therefore an agreement between the Applicant and the Commissioner as to the documentation that was relevant and necessary for the determination of the Applicant’s challenge to the Section 14 Notice and that documentation was furnished to, and is in the possession of, the Applicant. This is significant. 140. It is also significant that the Applicant engaged in the disciplinary process and has mounted proceedings challenging both the Section 14 Notice and the Section 51 Notice (including pursuing Hegarty No. 1 to the Supreme Court) and does not appear to have been prejudiced in so doing. As he himself states on affidavit, he made submissions in response to the Section 14 Notice on the basis of the documentation then available to him. All of these considerations point firmly away from the complaint of a deprivation of the Applicant’s rights to fair procedures. 141. In seeking to justify this challenge to the refusal to provide further material, the Applicant relies quite heavily on the assertion that the Statement of Opposition and the affidavit of Supt. Hoey introduce new or different matters and that he needs documentation related to same. I have already found that it is premature to seek to challenge the content of the Section 51 Notice. The question of what facts were established or admitted and properly open to the Commissioner to consider can be addressed by way of submissions to the Commissioner without the introduction of any new or additional documentation. Alternatively, these grounds are barred by Henderson v. Henderson. Insofar as the Applicant relies on “new” facts, the only apparently new factual matter is the assertion on affidavit and in the Statement of Opposition that the door of the Garda station was locked. This is a question which can be addressed in submissions under section 51(
  9. c)and, in any event, these proceedings are premised on the Section 51 Notice and there was no application to amend the Statement of Grounds. As for other matters alleged to have been raised by the opposition papers, these are matters of inference or opinion and certain of them were included in the Section 51 Notice (such as the question of whether the young woman was vulnerable). None of these considerations support the Materials Ground as pleaded. 142. One discrete argument that was emphasised at the hearing was that the Applicant is entitled to all documents considered by the Commissioner as opposed to the documents relied upon or underpinning the decision. This was not the basis of the requests sent to the Commissioner before the issue of proceedings (on 26 August 2025 and 4 September 2025). The Statement of Grounds and affidavits are also primarily directed to the materials “relied upon” by the Commissioner, although this is interspersed with references to materials “considered” 40 (including in the order sought). In any event, insofar as the Applicant asserts an entitlement to copies of all material “considered” by the Commissioner, in addition to the volume of relevant documentation already received by him, I have seen no authority for the breadth of that request and certainly no authority for the proposition that it is a deprivation of the rights of fair procedures not to have received every document considered. 143. Given the uncontested facts and the volume of material which has already been furnished, I do not accept that the Applicant has been or would be denied the right to make proper submissions by the refusal to provide further material as sought here. 144. Before concluding the Materials Ground, it is necessary to consider an authority on which the Applicant relies heavily: Baynham v. Commissioner of an Garda Síochána [2023] IEHC 735, [2025] IECA 194 (“Baynham”). Given the reliance placed on that case, I will consider it in some detail here. Garda Baynham, a member of An Garda Síochána, was suspended from duty on basic pay pursuant to the 2007 Regulations pending an investigation by the Director of Public Prosecutions of allegations of perverting the course of justice by Garda Baynham among other serving and retired members of An Garda Síochána. The investigations related to a practice of not prosecuting or cancelling fixed charge penalty notices (described as “squaring”). Files were referred to the DPP more than three and a half years before the High Court judgment (and Garda Baynham was subject to successive three-month suspensions throughout that time). Disciplinary proceedings against Garda Baynham were stayed while the criminal investigation was underway. 145. As recorded in the High Court judgment, each of the suspension notices was largely the same and included the dates of the suspension, the identity of the decision maker, and states that the suspension arises from alleged inappropriate interference with the administration and processing of fixed charge notices and that the Applicant allegedly received a gift. Each suspension notice was endorsed in identical terms referring to the specific matters alleged: “Alleged inappropriate interference in the administration and processing of Fixed Charge Penalty Notices and Fixed Charge Notices between 22nd December 2017 to 29th September 2019. Allegedly receiving a ‘gift’ as a reward for the alleged inappropriate interference in the administration and processing of Fixed Charge Penalty Notices and Fixed Charge Notices between 22nd December 2017 to 29th September 2019.” 41 146. The suspension notice that was the subject of the judicial review proceedings was issued on 7 November 2020 and was signed by Assistant Commissioner Clavin. From the description by Phelan J., each of the suspension notices was somewhat sparse in its content: “the various suspension notices served make no reference to an ongoing criminal investigation or disciplinary investigation or the requirements of discipline in the force or the interests of the force. They rest only on the two particulars as aforesaid and a reference to an authorisation under s. 31 of the 2005 Act and Regulation 7 of the 2007 Discipline Regulations. These particulars have remained unchanged over time since the first notice was served in November, 2020 despite the ongoing nature of the investigation and the fact that further files have been referred to the DPP for directions…” (at [22]). 147. It was only some eighteen months after the first suspension notice that Mr Baynham sought the materials relied upon by the decision maker (on the basis this was needed for the purpose of making submissions). This was refused on the ground that Mr Baynham was “fully aware” of the reasons for his suspension and it was “not appropriate at this stage in the proceedings to furnish any further material”. 148. Seventeen affidavits were sworn in those proceedings, including – notably - an affidavit by Assistant Commissioner Clavin, who had signed the relevant suspension notice and who was retired at the time that he swore his affidavit in July 2023. The affidavits listed the number of files referred to the DPP in which Garda Baynham was the primary suspect (including additional files of he was previously unaware). 149. The High Court (Phelan J.) rejected one of the planks of the case, based on the reasons for the suspension: “[h]e clearly knows he is suspended because serious allegations of “squaring” are made against him and files await direction from the D.P.P.” (at [156]). The High Court also found that the attempted challenge to the refusal to provide the materials relied upon was out of time. However, Phelan J. was critical of the very limited material and information provided even during the judicial review proceedings: “Although the Assistant Commissioners claim to be “fully briefed” in signing new suspension notices periodically, no information has been put before me as to what such briefing entailed. It is unclear, for example, what information is available to the Assistant Commissioner in extending the suspension notice as to when a decision is likely to be made as to directions on an investigation file concerning the Applicant and what factors are contributing to a delay in a decision on the files concerning the 42 Applicant. Nor is it clear what, if any, consideration has been given to the strength of the allegations against the Applicant and the likely outcome of the ongoing process. It is unclear to what extent reliance has been placed on the fact that additional investigation files in making further suspension orders” (at [40]). 150. The High Court later observed, “a court in judicial review proceedings should not be asked to decide such issues in an evidential vacuum and without being appraised of the material relied upon on behalf of the Commissioner in making the decision to further suspend in the first instance” (at [138]). 151. Referring to another suspension case, Brannock v. the Commissioner for An Garda Síochána [2023] IEHC 300, Phelan J. observed that it was a “striking fact” of that case that relevant documentation relating to the commencement of an investigation and the exchanges regarding the proposed suspension was exhibited to an affidavit sworn in the proceedings (at [97]). 152. In Baynham, Phelan J. held that it may not be necessary as a matter of course or in every case to furnish material relied upon in extending suspensions, but the length of the suspension there meant that “the balance has ‘tipped’ such that fair procedures require that the material considered in deciding to make further suspension orders notwithstanding significant delays in the process be disclosed, at least once it was requested” (at [101]). 153. Phelan J. concluded, “the material relied upon in deciding to extend the Applicant’s suspension should be disclosed, absent proper basis for withholding it, and he should be furnished with sufficient information to enable him to be satisfied as to the factors weighed in the decision to further suspension thereby enabling him to make appropriate representations and/or to challenge a suspension decision as appropriate” (at [158). 154. The following declaration was made: “… The Applicant is entitled to be furnished with sufficient information to enable him to be satisfied as to the factors weighed in the decision to further suspend him thereby enabling him to make appropriate representation and/or challenge the suspension decision as appropriate …”. 155. It is notable (in light of the arguments being made by Garda Hegarty here) that the findings and order are premised on materials relied upon and factors weighed by the decision maker. 43 156. Garda Baynham appealed to the Court of Appeal against the refusal of the reliefs sought and the respondents cross-appealed against the declaration for the provision of information. Both were unsuccessful. In rejecting the cross-appeal, O’Moore J (Faherty and Meenan JJ.in agreement), emphasised that it was effectively appealed on a pleading point (namely that no such declaration was sought by the applicant); the basis for the declaration “was not seriously challenged in the cross appeal” and “setting aside the declaration in Garda Baynham's favour may lead to some uncertainty with regard to not just his case but a number of other cases, which would clearly be undesirable” (at [96]). 157. O’Moore J. cited the reasoning of the High Court judge as to the desirability of materials being provided to allow an assessment of whether the suspension decision was based on relevant and not irrelevant – considerations, or was disproportionate, unreasonable or unlawful. He continued, “[t]o that, I would add that disclosure of such materials might also illuminate any analysis of competing factors, and any balancing exercise carried out by the Commissioner (or his delegate)” (at [97]). 158. Baynham is said by the Applicant here to support the right to all materials considered by the Commissioner. I do not agree for several reasons. The first and most important point of contrast is the detailed nature of the Section 51 Notice and the volume of documentation that has been furnished to Garda Hegarty (as detailed above). In Baynham, by contrast, the suspension notices appeared to be short, sparse documents, and there was observed to be an evidential vacuum regarding the suspension decision and the considerations weighed in making the decision. Further, the High Court and the Court of Appeal were concerned with the need for Garda Baynham to understand the factors and information considered by the Assistant Commissioner and how they were balanced. By contrast, here, Applicant can and does mount challenges to the Section 51 Notice based squarely on matters which he asserts were but should not have been considered or which he asserts were too heavily emphasised (Statement of Grounds at [47]). It is not apparent to me that he needs further material to make such a case. 159. A further consideration here is that only facts that have been found in a constitutionally compliant process or admitted that may be weighed in a decision to issue a section 51 notice (see Ivers at [74] and [79], although I would note that this question was expressly not addressed in Hegarty No. 1 [2025] IESC at [77]). In addition, unlike the suspension notice in Baynham, a section 51 notice is not based on personalised proportionality considerations (see Hegarty No. 1 at [2025] IESC at [49]). The range of facts that could be weighed is therefore somewhat more limited, which suggests that at least part of the justification for ordering disclosure in Baynham does not apply here. 44 160. I would finally note that the order made in Baynham was an order for the provision of “sufficient information to enable him to be satisfied as to the factors weighed in the decision” (which O’Moore J. suggested should be amended by the inclusion of the word “reasonable” or “reasonably”). Even on its terms, the order made in Baynham does not support the Applicant’s asserted entitlement to all documents considered by the Commissioner. (
  10. d)Public Confidence Ground 161. The case pleaded by the Applicant is that the lack of public confidence “is not grounded in evidence” and there is no “pressing public concern” arising from the need to maintain public confidence in An Garda Síochána. In his grounding affidavit, Garda Hegarty addresses his experience since his return to work in An Garda Síochána from October 2023 and asserts that no issue or concern was raised by any colleague or member of the public; there was no public disquiet; and his return to work did not give rise to public outcry or diminishing of public confidence in An Garda Síochána. His position is that there is no evidence to support the opinion of the Commissioner that his retention in An Garda Síochána would undermine, or that his dismissal is necessary to maintain, public confidence in An Garda Síochána. 162. It had been asserted in correspondence on behalf of the Applicant that, on the basis of the Supreme Court judgment in Hegarty No. 1, the question of whether dismissal is necessary to maintain public confidence “is not a matter of simple opinion but rather a matter of fact which must be established before the opinion is formed” (letter of 4 September 2025). The implication is that there must be concrete factual evidence to show “the necessary fact regarding public confidence”. In written submissions, the Applicant contends that there must be “evidence of broad public disquiet”, “evidence of an actual, live, active situation of public unrest or concern”. It is contended that the Commissioner “cannot simply think that public confidence might be damaged”. 163. The Commissioner denies this ground and pleads that “[s]ection 51 requires the Commissioner to form a subjective opinion that the conduct in question meets the threshold. The claim made by the Applicant in this regard runs contrary to the wording and clear intention expressed in s.51 of the 2024 Act.” The position advanced on behalf of the Commissioner in written and oral submissions is that section 51 requires him to make a subjective assessment on a rational basis of whether the dismissal is necessary to maintain public confidence in An Garda Síochána. It is contended that the “rational basis” must be capable of being the misconduct itself and this is apparent from the language of section 51 and the interpretation of the equivalent language in section 14 by the Supreme Court in Hegarty No. 1. According to the Commissioner, evidence of the conduct itself is sufficient to ground the opinion that dismissal is necessary to maintain 45 public confidence in An Garda Síochána and the only question is whether it was rational for him to form that opinion. Assessment 164. The language of section 51(
  11. a)is the necessary starting point. It provides in clear terms (included again here for ease of reference) that a member may be dismissed where, “by reason of the member’s conduct… the Garda Commissioner is of the opinion that (
  12. i)the member’s continued membership would undermine public confidence in An Garda Síochána, and (
  13. ii)the dismissal of the member is necessary to maintain that confidence”. 165. I have already observed that section 14
(2)(substituted by section 51 with effect from 2 April 2025) was in substantially the same terms, save that the qualifying words “by reason of the member’s conduct” appeared under sub-section 14
(2)(a)(i) and not in the opening sentence of the sub-section (as it does now in section 15(a)). This point was not emphasised by the parties,

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