DEC-S2005/037 Full Case Report

A Complainant (Represented by A.C Pendred Solicitors) -v- An Garda Siochána (Represented by David Keane BL instructed by the Chief State Solicitors Office)

1          Preliminary Issue to be decided

1.1       The issue dealt within this preliminary decision is whether the Equality Tribunal has jurisdiction to investigate and decide the complaint lodged by this complainant against An Garda Siochána. The issue arises from previous case law of the Tribunal which established that the controlling duties of the Garda Siochána are outside the scope of the Equal Status Act 2000 while the service aspects of the policing function are within its scope.¹
 

2.         Background

2.1       The background to the complaint is as follows. On 13th July 2002 the complainant together with some acquaintances went to Burger King in O’Connell Street, Dublin. While on the premises the complainant sought to use the toilets in the restaurant but was refused access. The complainant interpreted the refusal as being racist and a dispute occurred between himself and the security man on duty at the time. Arising from the dispute, the Garda Siochána were summoned to the restaurant and ultimately the complainant was arrested and taken to the local Garda station. He was subsequently charged with two offences arising from the incident. One of these charges was struck out in the District Court while in the other, an offence under the Criminal Justice (Public Order) Act, 1994, a guilty plea was entered and the Probation Act was applied by the District Court Judge.

2.2       The complainant subsequently lodged a complaint of discriminatory treatment, on the race ground, with the Equality Tribunal. The complainant alleges that the treatment he received from the Garda who attended on the occasion in question was less favourable/discriminatory treatment in relation to the provision of a service as defined by the Equal Status Act, 2000.

2.3       Arising from the previous decision of the Tribunal  in O’Donovan v Donnellan² the issue as to whether the Garda was engaged in the provision of a service or whether he was engaged in controlling duties in his dealings with the complainant on that evening needs to be determined. This is required in order to establish whether the Equality Tribunal has jurisdiction under the Equal Status Act 2000 to investigate and decide this complaint. Both parties attended for the hearing of this preliminary issue on Thursday 3rd March 2005.

3.         Complainant’s Submission

3.1       The complainant submitted that he was being provided with a service by the Garda Siochána on the occasion in question as he had asked for the Gardai to be called to the restaurant to assist him with a situation where he considered himself to have been subjected to discriminatory treatment.  It was submitted that An Garda Siochána as Ireland’s national police service defined its work as one of providing service to the public and as such was covered by the terms of the Equal Status Act, 2000. The complainant believed that his racial origin was the reason for the treatment he received from the Garda on the occasion in question and that this was consistent with treatment afforded to people of African racial origin by people in authority in the recent history of the developed world.

3.2       In response to the respondent’s argument that the entire issue was res judicata consequent on the findings of the District Court, the complainant submitted that the allegation of discrimination was not addressed by the District Court Judge, and remained a matter to be investigated by the Equality Tribunal.

4.         Respondents’ Submission

4.1       The respondent submitted that matters arising from the incident in Burger King, O’Connell Street on 13th July 2003 had been adjudicated upon by the District Court and as such were res judicata and could not therefore be dealt with again by the Equality Tribunal. It was submitted that the facts to be determined were identical to the complaint and therefore had been dealt with by the District Court in its determination of the charges before it. The pursuit of the claim under the Equal Status Act, it was submitted, was an abuse of process as it was being progressed  in the context of the issues being res judicata. The respondent cited a number of judgments of the Irish courts as precedent and decisions of the English courts in which the issue of res judicata was addressed by the learned judges.³

4.2       In relation to the issue of whether the intervention of the Garda in the situation was in the nature of service provision or of a controlling duty by the respondent it was submitted that in the light of previous case law of the Tribunal it had been established that controlling duties of member of the Garda Siochana would not come within the definition of service provision under the Act and as such were outside the jurisdiction of the Equality Tribunal. The attention of the Tribunal was drawn to English case law⁴ where the dual role of a police officer is set out. It was submitted that this dual role exists in the Irish situation as it does in the UK. The previous case of the Tribunal also considered whether one could place reliance on  Minister’s Statements during the passage of the legislation through the houses of the Oireachtas addressing with this issue.⁵

5.         Evidence of Garda

5.1       Evidence was provided by the Garda who attended the incident at Burger King regarding the circumstance which led to him being there. The Garda said that the first notice that he received of the incident was through a Radio call he received from Garda Control to the Patrol van he was in, indicating that there was a row going on in Burger King. The Garda said that the call was graded Priority One the most serious of 3 priorities given to such messages. The Garda said that Priority One calls related to situations where there was a report of a theft, a report of an intruder or robbery and reports of emergency incidents such as public order incidents. Priority Two calls were concerned with reported traffic accidents and Priority Three calls would deal with calls providing information, for example, where property had been found. On foot of the call he received, the van proceeded to Burger King where upon entering the premises he saw the complainant, and his companions, the security man and other members of the restaurant staff. At this point there did not appear to be a row going on but the complainant was irate and in an agitated state. The Garda said he attempted to calm the situation but ultimately arrested the complainant who was later charged with an offence under Section 6 of the Criminal Justice (Public Order ) Act 1984. The Garda said that the complainant was the only one of the group to be arrested. The Garda said that while he did not know who had made the call to the Gardai regarding the incident he believed that if the report of the incident to the Gardai had been a call to report an allegation of discriminatory treatment it would have been given Priority Three rather that the Priority One status it had been given, which signalled that the report was of a row or a breach of the peace.

6.         Conclusions of the Equality Officer

6.1       There are two principal issues to be addressed in my conclusions in this case. At the outset the examination as to my jurisdiction to hear and determine the complaint of discriminatory treatment in this case arose from a previous decision of the Equality Tribunal (then the Office of the Director of Equality Investigations).⁶ It was accepted in that case that the role of a member of the Garda Siochana is bifurcated. It can be identified as a dual role, of engaging in controlling duties of the investigation and prosecution of a crime on the one hand and the provision of a service to the public in the form of dealing with enquiries, signing passport applications etc. on the other. It was established in Donovan v Donnellan that while the second element of the dual role described above would be covered by the Equal Status Act, 2000, the first element, i.e., the controlling function is not within the remit of the functions of the Director as delegated to an Equality Officer in accordance with the Act. I will deal with this question later but first I must deal with the other of the two principal issues to be considered. This is the proposition submitted by the respondent in this case that the issue called upon to be investigated by the Tribunal is res judicata and therefore, cannot be re adjudicated by the Equality Tribunal.

6.2       The term Res Judicata is described by Mc Dermott as “A final judicial decision pronounced by a court of competent jurisdiction, disposes once and for all  of the matter decided so that they cannot afterwards be raised  for relitigation between the same parties or their privies.”⁷

6.3       Arising from the incident that precipitated the complainant’s complaint against an Garda Siochana to the Equality Tribunal, the complainant was charged under Section 6 of the Criminal Justice (Public Order) Act, and the matter was dealt with before the District Court where the Probation of Offenders Act, 1907 was applied. There is a dispute as to the basis on which this was done (the complainant maintains he pleaded not guilty) but it is apparent from the Court Order which I accept as being a true record of the finding of the Court that a guilty plea was entered. This means that while a conviction in the matter is not recorded by the Court the case is taken to be proven and the defendant is deemed to be guilty of the charge. It is consequent on this ruling of the court that the respondent in the case before the Tribunal has submitted that the complaint is res judicata and therefore it is outside the competence of the Tribunal to make a decision on the issue of discrimination complained of.

6.4       In considering this issue I have considered the decision of Lardner J in the High Court in his judgement on a Preliminary Matter in the case of Breathnach v Ireland and Ors.⁸  This case related to whether the Plaintiff was estopped from pursing a civil claim for damages in connection with injuries allegedly received while he was in Garda custody. In his trial for armed robbery the plaintiff (accused) had raised the matter of assault and battery in the course of his defence of the criminal charges in the Special Criminal Court in the original criminal case. Although found guilty of armed robbery the decision was overturned on appeal by the Court of Criminal Appeal. The Special Criminal Court in the original hearing of the criminal case found that there had not been an assault on the accused by the Gardai. In the subsequent appeal the Court of Criminal Appeal expressly declined to interfere with the findings of the Special Criminal Court in relation to the allegations of assault and battery specifically.

6.5       In considering these decisions of the criminal courts Lardner J in his judgment in the High Court on the preliminary civil matter held that the plaintiff was estopped from pursuing his claim for damages in the High Court.⁹ The finding of the Court was, that where a clearly identifiable issue had been submitted in the course of a criminal trial and had been decided against a party to those proceedings by means of a judgment explaining how the issue had been decided, such finding could give rise to issue estoppel in later civil action in which that party was engaged. This estoppel would apply not only in relation to the specific issue decided but in addition to findings which were fundamental to the court’s decision on the issue.

6.6       In relation to the matter under consideration in this case I consider that the case(s) discussed above can be clearly distinguished. The matter to be determined if the Tribunal is to have jurisdiction in the case is that of an alleged incident of discriminatory treatment contrary to the Equal Status Act 2000. The issue determined by the District Court in the criminal matter before it concerning the complainant is solely one of a determination of an issue of public order and not one of discrimination. In the case in the District Court, a court of summary jurisdiction which would not have had jurisdiction under the Equal Status Act to determine an allegation of discriminatory treatment, a guilty plea was entered by the complainant and the Probation Act 1907 applied to the determination of the public order  matter. I have concluded that this strongly suggests that the matter of discriminatory treatment was not determined by the District Court, nor was it fundamental to the Court’s determination of the issues before it. I therefore, conclude that the issue before the Tribunal is not res judicata and the decisions of the District Court do not impact on the Tribunal’s jurisdiction to hear and determine the allegation of discriminatory treatment.

6.7       The second principal issue to be considered is that of the functions of the Garda attending the incident in Burger King. Central to this is the question of whether the functions of the Garda Siochána are solely the provision of a service  to the public or whether they are divided into two categories, i.e., that of the provision of a service and also the controlling duties of arrest and the prosecution of crime. This question has been addressed previously in the decision of the Equality Officer in the case of Donovan v Donnellan in 2001.¹⁰ In that case the Equality Officer decided that the role of the Gardai is a dual role with two distinct dimensions to it. While the provision of a service to members of the public was the dimension of the role that comes within the authority of the Equality Tribunal in the event of allegations of discriminatory treatment arising, the other dimension that of the controlling duties of arrest and the investigation and prosecution of crime was considered to be a distinct function of the Garda Siochána, actions under which the Tribunal has not got jurisdiction. In reaching his conclusion in that case the Equality Officer considered several sources including case law of the superior courts of this jurisdiction and of the English courts. In accordance with the relevant authorities available to him at that time, it was considered appropriate to look at this issue in the light of the statements of the Minister for Justice Equality and Law Reform during the passage of the Equal Status Bill through the Oireachtas, prior to its enactment.¹¹ In considering all of the various sources both judicial precedent as well as parliamentary history, the Equality Officer reached his conclusion that complaints of discriminatory treatment arising in the context of  a member of the Garda Siochana exercising controlling duties could not be considered and decided by the Tribunal.¹² In the interim, however, there has been the decision of the Supreme Court in the case of Crilly -v- Farrington which casts a somewhat different light on the admissibility of Ministerial statements.¹³ A note of caution was expressed in this decision of the Supreme Court. Denham J in her judgment  said that if such Ministerial speeches were deemed admissible “It is possible that a Minister’s speech would then be drafted with a view to persuading a court of a certain approach.”  In the context of a parliamentary process where the amendments of opposition speakers are possibly incorporated in the final legislation, they may “significantly alter the intention as expressed in the original [M]inisterial Speech.” ¹⁴ The opinion of Denham J on the admissibility of Ministerial statements was echoed by the other members of the Supreme Court judging the case.

6.8       The decision of the Supreme  Court in Crilly -v- Farrington requires me to re examine the dual role thesis as determined  in the decision of the Equality Officer in Donovan v Donnellan,  this time considering it in the absence of consideration of the Minister’s speech on the introduction of the Equal Status Bill in the Dáil in 1999. The Equality Officer considered particularly, in addition to the Ministerial statements, the English case of Farah -v- Commissioner of Police of the Metropolis a case under the UK Race Relations Act, 1976, (an Act not dissimilar to the Equal Status Act 2000 in its Sections on provision of services) where Hutchinson LJ said  in accepting the submission of counsel “ In my view … is correct when he argues that section 20 is wide enough to apply to at least some of the acts undertaken by police officers in the performance of the duties of their office. The crucial words are “any person concerned with the provision (for payment or not) of …services to the public. I accept ……that these words are apt to cover those parts of a police officer’s duties involving assistance to or protection of members of the public……It is not suggested that pursuing arresting and charging criminals is the provision of a service” ¹⁵ This in my view was quite clear in acknowledging the role of the police as being a dual role of both service provision and of controlling duties, each function being independent of the other.  While an English judgment such as this does not have the binding precedent value of a judgment of the Supreme Court, it does, nevertheless, have persuasive authority and considering the structure of policing in that jurisdiction, like Ireland, is that of an unarmed police force/constabulary, it is of assistance in determining the issue. In the earlier decision of this Tribunal the Equality Officer took cogniscence of this position in his determination.  I too consider this statement to be of sufficient persuasive value that I would follow the ruling of the Equality Officer in Donovan -v- Donnellan to the extent that there is a dual role and that the controlling duties of a Garda are beyond the jurisdiction of the Equality Tribunal in relation to claims of discriminatory treatment.

6.9       One final question remains to be determined in order to reach my decision in this preliminary matter and that is whether the Garda who attended the incident in Burger King in July 2002 was there for the purpose of providing a service or was there for the purpose of performing controlling duties in relation to the investigation and prosecution of crime. The evidence of the Garda on this matter which was not contested is that he was in receipt of a call from Garda control which gave the incident a status which suggested a row was going on. I consider that the Garda in entering the restaurant premises was there for the purpose of dealing with a reported crime. The uncontested evidence of the complainant’s irate demeanour on the occasion, his subsequent arrest, and the order of the District Court against complainant on the public order charge support this view. I conclude, therefore, from the evidence before me that the Garda was engaged in controlling duties in his dealings with the complainant on the occasion of 13th July 2002.

7.         Decision of the Equality Officer

7.1       Having considered the submissions of both parties in this case and the previous case law of the Tribunal and the relevant case law of the courts, I have concluded that the complaint of discrimination was not res judicata consequent on the determination of the District Court in relation to the charges before it, arising from the incident in Burger King, O’Connell Street on 13th July 2002.

7.2       I further consider (DEC-S2005-037P) that the Garda who attended the incident was not engaged in the provision of a service to the complainant on the occasion on 13th July 2002 but was utilising his function of exercising a controlling duty. I therefore, decide that the Equality Tribunal does not have jurisdiction to investigate hear, and determine the complaint lodged by the complainant against An Garda Siochana, Complaint (ES/2002/0913) as the Equal Status Act can only deal with complaints of discrimination arising from the provision of goods and services .

Mary O’Callaghan

Equality Officer

31 May 2005