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Commissioner loses appeal over move to dismiss Garda

The Garda Commissioner has lost a court appeal against a decision quashing the Commissioner’s move to dismiss a Garda who had admitted engaging in a sexual act with a “vulnerable” witness at a Garda station in Co Waterford.

The ruling by the Court of Appeal has upheld a decision in the High Court which found that Garda Raymond Hegarty of Lismore Garda Station had already been the subject of a disciplinary process before the Garda Commissioner sought to dismiss him from the force.

An independent appeal board had imposed a reduced sanction of a monetary penalty.

The case arose from a complaint made by a member of the public regarding an incident at Lismore Garda Station on 15 March, 2017 which led to a disciplinary process.

Both Garda Hegarty and the complainant were interviewed by Superintendent Christopher Delaney, who had been appointed by the Garda Commissioner to investigate the alleged breaches of discipline by the Garda.

A board of inquiry was then established and Garda Hegarty was advised of the breaches of discipline alleged against him, that he conducted himself in a manner which he knew or ought to have known would be reasonably likely to discredit An Garda Síochána, by engaging in a sexual act with the complainant while on duty and during the course of taking a statement of evidence from the complainant, relating to the arrest of her sister the previous day.

It was also alleged that Garda Hegarty failed to record a statement of evidence from the complainant in relation to that arrest of her sister, in accordance with proper procedure.

The Garda “admitted the alleged breaches of discipline and the facts,” when the board of inquiry met to hear the allegations in September of 2018.

The board recommended that the applicant be required to retire or resign from the force, as an alternative to dismissal, in relation to the first breach of discipline; and that he be subjected to two weeks’ deduction of pay in relation to the second breach.

The Garda Commissioner accepted the board’s recommendations and he issued his decision to Garda Hegarty, requiring him to resign, as an alternative to dismissal, before 16 November, 2018, and that failure to do so would result in dismissal.

The Garda appealed the decision to an independent appeal board and this board imposed a “temporary reduction in pay of four weeks” in place of the Commissioner’s requirement for the Garda to resign, finding that the initial penalty was “disproportionate”.

The board, in reaching its decision, noted that the Garda was “deeply remorseful” for his actions and had already been suspended from 25 September, 2018, and was being fined the maximum allowed. He had also suffered “reputational damage within his community and at work” and his personal life had been “severely affected”.

The Garda was a father of young children with a mortgage and family to provide for.

Following the board’s decision, the applicant – Garda Hegarty – received a notice on 28 January, 2020, that he was suspended from 1 February to 1 May of that year, as the Garda Commissioner was considering the 2005 Garda Síochána Act which stated in Section 14 that the Commissioner may dismiss a member if of the opinion that the member’s continued membership would undermine confidence in the force, because of the member’s conduct.

Garda Hegarty’s solicitor then wrote to the Commissioner stating that the suspension was “unlawful” as the appeals board had already made its decision, and calling for the Garda to be reinstated to duty.

On 31 March of that year, the Commissioner advised the Garda that, notwithstanding the decision of the appeals board, it was his opinion that the Garda’s dismissal was “necessary” to maintain public confidence in An Garda Síochána.

“It was asserted,” the Court of Appeal’s ruling states, “that the applicant breached the rights of a vulnerable female who attended at Lismore Garda Station on 15 March, 2017, ‘by interfering with her bodily integrity by engaging in inappropriate sexual activity with her in a Garda station’.”

The Garda was in a position of authority in the station and was aware that the female was vulnerable, the Commissioner said in his letter to the Garda.

Garda Hegarty took a Judicial Review case against the decision to suspend him, claiming that the Commissioner had acted “irrationally” and was in abuse of process and in breach of natural and constitutional justice, as the suspensions “effectively flew in the face” of the appeal board’s determination.

In its ruling, the High Court stated that the applicant [Garda] had “already been pursued once for misconduct and has had a penalty imposed for his conduct,” following a process instigated by the Commissioner who contended for the applicant’s removal from the force.

“An independent appeal board determined that such sanction was disproportionate, but imposed a penalty nonetheless. The applicant, having paid that penalty, is now being subject to a second process for the same conduct where there has been no change in the underlying facts and circumstances,” and this “fundamentally offends principles of constitutional justice”.

The Garda Commissioner appealed this ruling to the Court of Appeal, asserting that the High Court judge had “erred in law and/or fact” in a number of regards, including their finding that the Commissioner’s invocation of Section 14 of the Garda Síochána Act was “in breach of the applicant’s right to natural and constitutional justice”.

The Commissioner also argued that the judicial review proceedings taken by the applicant were “premature” as the Commissioner had only proceeded through stage one of the Section 14 process, in that he wrote to the applicant to tell him his opinion and was giving the applicant an opportunity to respond to his proposal to dismiss him.

Ms Justice Mary Faherty of the Court of Appeal said she “cannot accept the Commissioner’s argument” because the applicant’s own argument was that the Commissioner should never have embarked on the Section 14 process as the Garda had already been the subject of a disciplinary process. “He [the applicant Garda] cannot be said to have jumped the gun in initiating judicial review proceedings when he did.”

She noted that the Commissioner was not bound by the initial recommendation of the board of inquiry, which recommended that the Garda be asked to resign or retire, instead of dismissal, and that he could have “dismissed the applicant outright”. Instead, the Commissioner accepted the board’s recommendation and the Garda availed of his right to appeal, which led to the independent appeal board’s decision to impose monetary sanction.

It was the applicant’s case that, once the initial disciplinary process was invoked against him, the Commissioner could not then invoke the Section 14 process.

“Having regard to the circumstances of the present case, I am persuaded by the applicant’s submissions,” the court of appeal judge stated, adding that the section 14 process “cannot be operated ‘in a vacuum'” without regard to the earlier disciplinary process.

“In my view, the applicant is procedurally and substantively entitled to the benefits of the Appeal Board’s determination, which was that requiring him to resign in lieu of dismissal was a disproportionate sanction,” the judge said.

She did not agree with the Commissioner’s argument about the public confidence element being sufficient, in itself, to warrant invoking Section 14. Public confidence in the force “clearly permeated the deliberations” of both the Board of Inquiry and the Appeal Board, she said.

The judge concluded by saying that, in the circumstances “I am satisfied that the Commissioner had no lawful basis for invoking the s.14 (2) process” and, accordingly, dismissed the Commissioner’s appeal. It would “seem to follow” that the applicant should be awarded his costs, she said, giving the parties involved 28 days to seek any different costs order.

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