The High Court has ruled that a Garda suspended for more than three years is entitled to information about the material considered when his suspension is extended, so he can make representations or challenge a future decision. The court said the ongoing refusal to provide that information breached his right to fair procedures.
In a judgment delivered on 20 December 2023, Ms Justice Siobhán Phelan said the information should include the material relied upon or, where justified, its gist. If operational reasons prevent full disclosure, the decision-maker must consider how to protect legitimate interests while still informing the officer. The court found that a bare reference to “operational reasons” did not explain why information could not be provided.
The applicant, Paul Baynham, had been suspended on basic pay since November 2020 while criminal investigations known as Operation Bath and Operation Modulus continued. The investigations concern allegations that fixed charge penalty notices were improperly handled, a practice described in the judgment as “squaring.” The court recorded that 38 investigation files involving or featuring Baynham had been sent to the Director of Public Prosecutions (DPP), with directions still awaited at the November 2023 hearing. These are allegations, not findings of wrongdoing against him.
Justice Phelan rejected his claims that he did not know, in broad terms, why he was suspended, that his treatment had been unequal, and that the suspension power in the Garda discipline regulations was beyond the authority granted by the Garda Síochána Act 2005. She also declined to find that delay had yet made the continuing suspension unlawful. In reaching that conclusion, she considered the scale of the investigations and that Baynham had not pressed for the disciplinary process to proceed alongside or ahead of the criminal investigation.
The court noted that the disciplinary investigation had not substantively progressed since Baynham received notice of it in January 2021. It said further delay without adequate explanation could weaken the case for continued suspension, and that a different outcome might follow if he pressed for progress and delays were not better explained.
Baynham’s challenge to the September 2022 refusal to provide material was out of time, as were challenges to earlier individual suspension decisions. Rather than quashing a particular suspension, the court said the appropriate remedy was to declare his entitlement to relevant information for ongoing reviews, subject to any properly established basis for withholding it. The judge left the final form of the order and consequential matters for agreement or further hearing.