The ongoing suspensions of four gardaí, first initiated three years ago, arising out of investigations into the alleged “squaring” of fixed charge penalty notices should be quashed due to the delay to resolution and a lack of reasons, the High Court has heard.
Garda Paul 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 without pay in November 2020.
All deny any wrongdoing and say they have at no point been arrested or charged.
Ms Justice Siobhán Phelan heard submissions on Tuesday in the case brought by Gda Baynham, with the similar actions of the other three gardaí attached.
Mark Harty SC, with James Kane BL, said the suspensions must be reviewed every three months and his clients must be entitled to make “effective” submissions in relation to the renewals.
However, they cannot make “effective” submissions without knowing the basis for the suspension, he said.
Length of suspensions
He questioned why his clients, out of some 130 gardaí allegedly interviewed and investigated, have been subjected to suspensions lasting three years. The length of time is causing the suspensions to become “punitive” in nature, he added.
The investigation by the National Bureau of Criminal Investigation concerns the alleged “squaring” of fixed charge notices, where these would allegedly not be written up, not prosecuted in court or would be cancelled on the system.
The gardaí claim their personal phones were seized pursuant to warrants in October 2019 as part of the probe into wrongdoing alleged against now-retired Limerick superintendent Eamon O’Neill.
Mr O’Neill denies all wrongdoing. He faces charges of attempting to pervert the course of justice, which have yet to be heard at Limerick Circuit Criminal Court. Four other gardaí, who are not those bringing these judicial review actions, are contesting similar counts relating to a three-year period leading to September 2019.
The four challenging their suspensions in the civil High Court say they were told the bureau was only looking for material connected to Mr O’Neill. They were later interviewed under caution and instructed to hand over their notebooks, they claim.
Making submissions in Mr Baynham’s action on Tuesday, Mr Harty said the suspension has not been explained by the commissioner other than that it is to preserve the integrity of the criminal investigation into “squaring” and in the interests of An Garda Síochána.
He submitted that there are many scenarios that could arguably be “in the interest” of the force, but that does not mean a suspension under this heading is a “necessary and correct decision or a lawful decision”. The Oireachtas has legislated for suspensions to be in the interests of “discipline and discipline only”, he added.
Public confidence
Public confidence in An Garda Síochána is important, but this does not entitle the commissioner to suspend a member for the sake of “public image”, he said.
He submitted that the allegations against Mr Baynham are “evolving”, and there has been significant material non-disclosure by the commissioner.
A file was sent to the Director of Public Prosecutions (DPP) concerning some members in July 2020 and another in July 2022 following on from the investigation, but there has been no decision made in relation to these, the court heard.
Responding on behalf of the commissioner, Conor Power SC said the criminal investigation into squaring and the disciplinary proceedings are ongoing.
An Garda Síochána is awaiting decisions from the DPP, which is an independent office, on files sent regarding five Garda members and members of the public in relation to the investigation, he said.
Ms Justice Phelan asked if the commissioner can wait “indefinitely” for the DPP to decide upon a file. Mr Power said the office is statutorily obliged to make a decision and must be allowed to take its own course. Perhaps the delay could become so egregious that it would be considered a refusal decision, he added.
The judge said a suspension of three years seems to be “an extraordinary length of time”.
Mr Power accepted it is a “very unfortunate situation”, but if the delay is not of the commissioner’s making, then the commissioner should not have to alter his position.
Asked about the delay in the disciplinary process, he said the investigation is “complex and serious”.
Mr Power pointed to what he said seemed to be contradictions in Gda Baynham’s statements about the level of information he was given about the criminal investigation.
While he said in his first affidavit to the court that he had no allegations put to him, this stands in contrast to his April 2022 personal statement in which he said he believed he was a suspect when interviewed under caution with a solicitor present in October 2019.
He said an impression has been given that Gda Baynham was “led to believe he was some innocent bystander”, but that “does not accord with the evidence”.
The hearing continues on Wednesday.
