Commissioner wins Supreme Court appeal over dismissal of garda who engaged in sex act in station
Garda Commissioner
has won a
Supreme Court
appeal over efforts to dismiss a garda who engaged in a sexual act with a woman while on duty in a
Garda
station.
The court overturned decisions by both the High Court and the Court of Appeal (CoA) which found the decision by the commissioner that Garda Raymond Hegarty of Lismore Garda station should either resign or be dismissed because of conduct likely to undermine public confidence in the force.
Both lower courts found his suspension, pending either resignation or dismissal, 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 appeals over both the High Court and Court of Appeal decisions.
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In a four-to-one majority decision on Thursday, the Supreme Court allowed the commissioner's appeal and refused the relief which had been sought by Garda Hegarty.
The courts heard Garda Hegarty 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 Garda Commissioner decided that, notwithstanding the finding, he was to be suspended pending his resignation as an alternative to dismissal.
Garda Hegarty, in his legal challenge, claimed the decision effectively flew in the face of the determination.
The commissioner denied his claims.
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 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 which decided in January 2020 the penalty in relation to the sexual act was disproportionate and it imposed a penalty for that of a four-week reduction in pay. The two-week pay reduction previously recommended in relation to the statement breach remained unchanged.
In a judgment on behalf of the majority Supreme Court, Mr Justice Brian Murray said there was nothing unconstitutional in a state of affairs where the garda was the subject of a disciplinary process and sanctioned accordingly and in which the commissioner, at the conclusion of that process, decided that he would invoke a separate statutory procedure.
This, he said, was a separate procedure which enabled him for a different purpose and by reference to different criteria to dismiss the garda if his conduct was such that his continued presence as a member of the force would impair public confidence in the force.
While processes under section 14.2 of the Garda Síochána Act 2005 and under the Garda Síochána (Discipline) Regulations 2007 have as an objective the assurance of public confidence in the force, the regulations envisage a disciplinary power which takes account of a range of considerations and is intended to achieve a number of objectives, he said.
It was not enough for the commissioner to decide the conduct was wrongful or even disgraceful or the public might lose confidence in the force or that the public might be incensed by the conduct and demand dismissal, he said. The commissioner must take a broader view, and he must be satisfied in taking that view, that the dismissal is necessary to maintain public confidence, he said.
Section 14.2 of the 2005 Act confers an extreme power to be resorted to only in the wholly exceptional situation in which the conduct is such that their continued membership of the force would undermine public confidence and the dismissal of that person is 'necessary to maintain that confidence', he said.
In a dissenting judgment, Mr Justice Séamus Woulfe said the power under section 14.2 to dismiss a garda for specified conduct could not be invoked where he had already suffered a prior sanction in a prior disciplinary process based on precisely the same conduct.
The commissioner may not overrule or not follow a decision of an appeal board when exercising his powers under section 14.2 insofar as the dismissal of the member would be for the very same conduct in respect of which a member had already been sanctioned, he said.
'In my opinion the alternative answers urged upon this court by the commissioner cast a dark shadow of unfairness over the overall Garda disciplinary code and are not consistent with constitutional justice,' he said.
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