A garda who engaged in a sexual act with a woman while on duty in a Garda station was unlawfully suspended over the incident, the High Court has ruled.
The decision was reached because the officer had already gone through a disciplinary process in which a recommendation that he resign was overturned and instead, a reduction in wages was imposed, Mr Justice Cian Ferriter found.
The garda, who was based in a rural station, had admitted discreditable conduct by engaging in the act with a woman who had come into the station to give a statement relating to the arrest of her sister in March 2017.
Following a garda disciplinary process in which his resignation/retirement was recommended but later overturned as disproportionate, the Garda Commissioner decided that notwithstanding the finding, he was to be suspended.
The garda brought High Court judicial review proceedings against the Commissioner.
Suspension
It was claimed the suspension, which was extended a number of times, effectively flew in the face of the determination that he only lose pay and not be required to resign. The Commissioner opposed the action.
Mr Justice Cian Ferriter found the suspension was unlawful.
The judge said after the garda admitted to an internal inquiry in September 2018 that he engaged in the sexual act and failed to take a statement from the woman, it was recommended he be required to retire or resign for the sexual act matter and be subject to a two-week reduction in pay over the failure to take her statement.
The Garda Commissioner adopted the recommendation and told the garda that if he failed to resign by November 16th, 2018, he would be dismissed.
He appealed the decision and an appeal board, chaired by then senior counsel, now High Court judge Caroline Biggs, decided in January 2020 that the penalty in relation to the sexual act was disproportionate.
The board imposed a penalty on the sexual act breach of a four-week reduction in pay. The two-week pay reduction previously recommended in relation to the statement breach remained unchanged.
Mr Justice Ferriter said in arriving at its view, the appeal board considered the circumstances of commission of the breach, the garda's previous unblemished record and various other mitigating factors.
It was noted he was deeply remorseful for his actions, but the board stated: “Public confidence mandates that these breaches be severely punished."
Reputational damage
The board said it was issuing the maximum fine permitted for the sexual act, adding that the garda had suffered reputational damage within his community and work. It was noted that his personal life had been severely affected, including that his father had not spoken to him in 14 months.
He was the father of three very young children with a mortgage and a family to provide for and that “taking away his right to work as a member of An Garda Síochána, would affect his ability to support his family greatly”, the board also said.
Subsequently, however, in January 2020, the garda received a letter on behalf of the Commissioner suspending him.
The reason for the suspension was given as "consideration of (the garda's) position under Section 14 of the Garda Síochána Act", which gives the Commissioner power to dismiss an officer if it is considered necessary to maintain confidence in the force.
The Commissioner also said the garda was aware the woman in this case was vulnerable, while he was in a position of authority alone with her in the station. His position in the force was untenable, the Commissioner added.
Following correspondence from the garda's solicitor to the Commissioner, stating the decision to suspend him was unlawful and calling for his reinstatement, legal proceedings followed.
In his decision in favour of the garda, Mr Justice Ferriter said by using Section 14 of the Garda Síochána Act to suspend him the officer was being "vexed twice" in relation to the same matter.
The Commissioner appeared to take the view that the prior disciplinary process and its outcome was legally irrelevant. "I do not believe that is correct as it disregards entirely the (garda's) rights in the matter", the judge said.
The invoking of the Commissioner’s "exceptional powers" under Section 14 of the Act breached the garda's rights to constitutional justice on the facts of this case, Mr Justice Ferriter added.
