The Court of Appeal has overturned a High Court order allowing Garda Hegarty to cross-examine Chief Superintendent Margaret Nugent in his judicial review proceedings against the Garda Commissioner.
The appeal concerned a procedural question: whether cross-examination was needed to resolve a factual dispute about the relationship between a statutory process under section 14 of the Garda Síochána Act 2005 and an earlier disciplinary process. It did not determine whether the Commissioner was entitled to invoke section 14 or whether the letter initiating that process was lawful.
The underlying disciplinary proceedings followed alleged inappropriate conduct by Garda Hegarty while on duty at Lismore Garda Station, County Waterford, in March 2017. The conduct was not disputed. A Board of Inquiry recommended that he be required to retire or resign as an alternative to dismissal for one breach, and that two weeks’ pay be deducted for another. The Commissioner imposed those sanctions in October 2018.
On appeal, the first penalty was replaced with a four-week pay reduction; the second was left unchanged. In January 2020, Garda Hegarty was suspended while the Commissioner considered his position under section 14. In a letter dated 31 March 2020, the Commissioner stated a preliminary opinion that Garda Hegarty’s continued membership would undermine public confidence and that dismissal was necessary to maintain it. He invited a response by 29 April.
Garda Hegarty’s amended judicial review challenge alleged, among other things, that the Commissioner had failed to implement the Appeal Board’s decision, had not conducted an inquiry before forming the opinion, and had not given Garda Hegarty an opportunity to respond before writing the letter. The Court of Appeal said those matters were not factually disputed. The Commissioner maintained that the section 14 process was separate from the disciplinary procedure.
The High Court had allowed cross-examination of Chief Superintendent Nugent on the interaction between the two processes. The Court of Appeal held that the application had not identified an opposing factual account that needed to be resolved, or shown that resolving such a dispute was essential to the judicial review. It said cross-examination could not be used to probe the Commissioner’s reasoning or to elicit facts as a basis for challenging the decision.
Allowing the appeal, the Court of Appeal set aside the order for cross-examination. It did not rule on the underlying legal challenge, describing the interaction between section 14 and the disciplinary regulations as an issue for the trial court. It directed that the costs of the appeal and High Court proceedings be costs in the cause, subject to either party seeking a supplemental costs hearing within 14 days.