A garda suspended from duties for more than three years “clearly knows” this is due to serious allegations against him concerning “squaring” fixed penalty notices and that decisions are awaited on files sent to the Director of Public Prosecutions (DPP), a High Court judge has said.
In a ruling on Wednesday, Ms Justice Siobhán Phelan said Garda Paul Baynham knows of the Garda Commissioner’s intention not to progress a disciplinary investigation while the question of criminal charges is being determined.
The practice of “squaring” involves penalty notices not being written up, not prosecuted in court and/or cancelled on the system.
The judge said a suspension of more than three years without any concluded investigation of the alleged underlying wrongdoing is “very concerning”, as expedition in both a criminal investigation and the disciplinary process is part of constitutional justice.
However, she pointed to the scale of the criminal investigation into Garda members and members of the public into alleged squaring and that directions are awaited from the third-party DPP.
Considering these factors, alongside the fact Gda Baynham has not been pressing for the disciplinary proceedings to be pursued in tandem or ahead of the criminal process, she said she was not satisfied his suspension has “as yet” been invalidated by delay such to warrant the court’s interference.
Fair procedure
Gda Baynham is entitled, where possible, to information that allows him to be satisfied that relevant matters have been considered when deciding to extend his suspension every three months, she said. His rights to fair procedures have been breached, as necessary information has been withheld surrounding the periodic extension of his suspension, she held.
He is among four gardaí who initiated separate High Court actions alleging their continued suspensions, arising out of investigations into the alleged squaring of fixed penalty notices, are unlawful.
Gda Baynham, Garda Alan Griffin, Garda Niall Deegan and Garda John Shanahan were all attached to the Roads Policing Unit at Henry Street in Limerick before being suspended with basic pay in November 2020. All deny any wrongdoing and say they have at no point been arrested or charged.
Gda Baynham’s challenge was heard by Ms Justice Phelan last month, while the others have been travelling alongside.
He asked for his suspension to be quashed due to an alleged refusal by the commissioner to provide him with material considered in deciding to extend his suspension, a failure to provide him with reasons for the suspension, and for the delay that has occurred.
The commissioner, represented by Conor Power SC, argued, among other things, that any delay is not of the commissioner’s making, as he awaits a decision from the DPP, which is an independent office.
Ms Justice Phelan said she was satisfied, on the balance of probabilities, that Gda Baynham was specifically told he was being investigated for alleged attempts to pervert the course of justice relating to his involvement in two prosecutions of people under the Road Traffic Act for holding a phone while driving on dates in 2018.
“I am satisfied that the applicant could not but have been aware that he was the subject of a criminal investigation for suspected offences and the nature of the suspected offences,” the judge added.
She said he was interviewed under caution with his solicitor in October 2019 as part of the criminal investigation. Two allegations were put to him in that meeting and he made a voluntary cautioned statement, she said.
Ms Justice Phelan said that while the initial suspension related to the two matters, leading to two files being sent to the DPP in July 2020, “numerous further allegations of wrongdoing are said to have emerged as against the applicant since his initial suspension such that the applicant now features in 38 of these 198 separate investigations files” sent to the DPP for directions.
She said the majority of these files were only sent to the DPP in January 2023.
She was satisfied he was informed in January 2021 that disciplinary matters would be on ice pending the conclusion of the criminal investigation into allegations of wrongdoing against him but he was not invited to consent to this approach.
It seemed to her “no accident” that Gda Baynham has not pressed for the disciplinary process to be expedited. From his perspective there is good reason not to agitate for an earlier determination as these may have to be discontinued if he is acquitted on criminal charges, if any are brought, she said.
The judge said she will hear from the parties as to the form of order she should make and consequential matters.
