The Garda Commissioner has lost an appeal over the suspension of a garda who engaged in a sexual act with a woman while on duty in a Garda station.
The Commissioner had appealed a High Court decision which found the garda was unlawfully suspended.
The court found the suspension was unlawful 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.
The Commissioner brought an appeal over that decision claiming the High Court judge erred in law and/or in fact.
On Tuesday, a three-judge Court of Appeal (CoA) upheld the High Court decision.
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, his resignation/retirement was recommended. This was later overturned as disproportionate.
The Commissioner decided that, notwithstanding the finding, he was to be suspended.
The garda brought High Court judicial review proceedings against the Commissioner.
It was claimed the suspension, which was extended a number of times, flew in the face of the determination that he only lose pay and not be required to resign.
The Commissioner opposed the action.
The court heard that after admitting to an internal inquiry in September 2018 to engaging in the sexual act and failing to take a statement from the woman, it was recommended he be required to retire or resign for the sexual act and be subject to a two-week reduction in pay over the failure to take her statement.
The Commissioner adopted the recommendation and told him 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 Appeal 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.
The High Court found that in arriving at its view, the Appeal Board considered the circumstances of the 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 that “public confidence mandates that these breaches be severely punished”.
The board said it was fining him the maximum allowed for the sexual act and that he had suffered reputational damage within his community and his work. 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.
The Commissioner, in suspending him, 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 said.
Following the High Court decision, the Commissioner appealed.
He argued, among other things, the High Court erred in failing to recognise that the provisions of section 14 of the An Garda Síochána Act 2005, under which the officer was suspended, was not in substance concerned with disciplinary matters.
The Act has a wider focus on circumstances where an officer’s continued membership would undermine public confidence in An Garda Síochána, it was argued.
In her judgment on behalf of the CoA, Ms Justice Mary Faherty said she was persuaded by submissions made on behalf of the garda.
Once the Commissioner instigated the disciplinary process under the Garda Disciplinary Regulations and saw that through to its ultimate conclusion, it could not be said to accord with the precepts of constitutional justice to then invoke the Garda Siochana Act 2005 to effectively overturn the earlier process, she said.
In the judge’s view, the garda was 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.