Garda chief has no power to replace new presiding officer on inquiry

The High Court has ruled the Garda Commissioner had no power to substitute a new presiding officer on an existing board of inquiry dealing with alleged breaches of Garda discipline by three serving members.

Mr Justice Paul Coffey granted an application by Garda Damien Broughall, Garda Avril Doyle and Garda Ronan Waldron to quash the Commissioner's appointment of a new presiding officer after the previous one said he could no longer continue in the role.

The inquiry board was set up to consider allegations of breaches of discipline against the three gardaí arising out of their handling and control of exhibits of items seized during a 2007 Garda investigation into the murder of Sean McMahon, who was shot dead at his home in Donomore Avenue, Tallaght, Dublin.

The three gardaí, who were all stationed in the Tallaght District at the time of the search, deny any wrongdoing.

Quantities of cash and drugs

During the investigation, items including quantities of cash and drugs were recovered by gardaí following the search of a house in Crumlin, and were treated as exhibits for potential use at a criminal trial.

In 2013, a Police Property Act application was made to have the monies seized in the search returned, but some of the monies were missing.

As a result, disciplinary proceedings were brought in 2014 against a number of gardaí, including the applicants, over their handling and recording of the exhibits.

A three-person board of inquiry, comprised of a solicitor as presiding officer and two ranking gardaí, was established by the Commissioner in 2014 and it heard various applications concerning the allegations between then and 2016.

In December 2016, after the solicitor informed the Commissioner he was no longer able to continue in the role of presiding officer, the Commissioner in January 2017 appointed another solicitor as presiding officer.

Right to fair procedures

In their High Court action, the three gardaí claimed the Commissioner lacked power to reconvene the board with a new presiding officer, and that their right to fair procedures was breached. Lawyers for the Commissioner opposed the application.

In his judgment, Mr Justice Coffey said, under the Garda regulations, it is intended a board of inquiry operates as a unitary body in the manner it considers cases.

If a board cannot for good reason complete its work, the Commissioner has power to establish a new board with different members to deal with the matter from the beginning, he said.

A power to substitute a presiding officer on an already established board of inquiry cannot be read into the Garda Disciplinary Regulations without producing "incoherence, anomaly and confusion", he ruled. He was therefore quashing the decision appointing a new presiding officer.