The High Court has refused two gardaí’s application to stop disciplinary proceedings arising from events in Limerick, after they were acquitted of assault in the District Court.
Mr Justice White delivered judgment on 3 March 2017 in the judicial review brought by the two serving members of An Garda Síochána, who are stationed at Kilmainham Garda Station. They had sought orders prohibiting further disciplinary steps and declarations that the proceedings were outside the relevant regulations or unfair and oppressive.
The criminal case followed an incident during a social weekend in Limerick on 5 December 2013. The applicants were acquitted of assault contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997 after a contested trial on 13 November 2014.
Separately, a disciplinary investigation began in 2014. The alleged breach before a Board of Inquiry was “discreditable conduct”: that each applicant had attempted to gain access to an apartment building on Upper Cecil Street seeking the services of a prostitute. These were allegations, not findings by the High Court. The Board was told the disciplinary matter was distinct from the District Court charges and that continuing it would not be unfair or oppressive.
The court considered Regulation 8 of the Garda Síochána (Discipline) Regulations 2007. It permits disciplinary proceedings after an acquittal, but says they must not be commenced or continued where they would involve an inquiry into the same issues and, in all the circumstances, proceeding would be unfair and oppressive.
Mr Justice White said the regulation did not require the criminal trial evidence to be considered in every disciplinary case. Depending on the evidence and how closely the alleged breach relates to the criminal case, however, an investigating officer, the Commissioner or the Board may have to examine that evidence. The Board also has an ongoing responsibility to decide whether the Regulation 8 conditions apply.
On the material before him, the judge said there was ample prima facie evidence to commence the inquiry. He considered the alleged attempt to enter the apartment block to have occurred at least ten minutes before the events that formed the subject of the assault prosecution, and found the Board’s ruling was not illogical or irrational. He declined to direct the Board on how to assess witness credibility, while emphasising that the applicants must have a fair opportunity to test the credibility of witnesses whose evidence the Board relies on.
The court refused the requested relief. It did not determine whether the applicants committed the alleged disciplinary breaches. The judgment said they could seek judicial review of the Commissioner’s final decision if the Board failed to apply fair procedures.