A Garda who engaged in a sexual act with a woman while on duty has secured leave from the High Court to bring a legal challenge over a fresh move to dismiss him.
Garda Raymond Hegarty claims he has been unlawfully and irrationally suspended under a process commenced last month under section 51 of the Policing, Security and Community Safety Act 2024 with a view to continuing a process aimed at dismissing him.
He claims his conduct with the woman in Lismore Garda station in 2017 was not of sufficient gravity to merit dismissal. He also claims there is no evidence to support the Garda Commissioner’s assertion that, in his opinion, the woman was “vulnerable”.
Garda Hegarty claims the notice issued under section 51 was based on the opinion of then Garda Commissioner Drew Harris and cannot be relied on.
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He has not been informed of any opinion by the current commissioner, Justin Kelly, who was appointed on September 1st.
The courts previously heard Garda Hegarty had admitted discreditable conduct by engaging in a sexual act in March 2017 with a woman who had come into the station to give a statement regarding her sister’s arrest, and failing to take a statement from the woman.
The Supreme Court last July overturned decisions by the High Court and the Court of Appeal. These found the commissioner’s decision that the Garda should resign, or be dismissed because of conduct likely to undermine public confidence in the force, was in breach of his rights.
Both lower courts found his suspension pending resignation or dismissal was unlawful. This was because he had already gone through a disciplinary process in which a recommendation that he resign was overturned on appeal in January 2020, and instead a reduction in wages was imposed.
In its four-to-one majority judgment last July, the Supreme Court said there was nothing unconstitutional in a state of affairs where the garda was subject of a disciplinary process and sanctioned accordingly and in which the commissioner, at the conclusion of that process, decided to invoke a separate statutory procedure.
This separate procedure – under section 14.2 of the Garda Síochána Act 2005 – enabled the commissioner, for a different purpose and by reference to different criteria, to dismiss the garda if his conduct was such his continued presence as a Garda member would impair public confidence in the force, the court held.
On August 15th last, while out of work through injury, Garda Hegarty was served with the notice of suspension under section 51 of the 2024 Act.
On Wednesday, Mark Harty SC, for Garda Hegarty, said his solicitor has looked for all material considered by the commissioner in deciding on suspension. This included materials to support the commissioner’s assertion that the woman was a “vulnerable” person and his opinion that Garda Hegarty’s actions would impair public confidence in the force.
Garda Hegarty was suspended from duties from September 2018 to mid-October 2023. His return to active service, including full police duties, did not give rise to any public outcry, it was stated in court papers. He did not know the duration of this second suspension and there has been no reply to his solicitor’s letters concerning the lawfulness of it.
Garda Hegarty was seeking, in his judicial review proceedings, to quash the section 51 notice as unlawful. He also wants declarations that he is entitled to see all materials considered by the commissioner in issuing it, counsel said.
The opinion on which the section 51 notice was based could not be relied on as it was not that of the present Garda Commissioner, he also said.
Mr Justice Rory Mulcahy said he would grant leave to seek orders in judicial review proceedings, including one quashing the section 51 notice. The “unusual circumstances” include that Garda Hegarty had been reinstated on foot of court decisions and there is a new Garda Commissioner, he said.
It seemed complex issues had arisen following last July’s Supreme Court decision on the earlier case involving Garda Hegarty, he said.
