The Supreme Court has allowed a prison officer’s appeal against a High Court refusal of judicial review, ruling that disciplinary proceedings over the same alleged assault for which he had been acquitted would be unfair on the particular facts of the case.
The court said the criminal acquittal did not automatically prevent disciplinary proceedings in every case. But it found that this proposed inquiry would effectively reopen identical allegations, based on essentially the same evidence and witnesses, after a five-week trial and 16 hours of jury deliberations.
The case arose from a disturbance at Mountjoy Prison on 18 September 1999. Prison officers alleged that Alan Garvey kicked prisoner Colm Fogarty in the face while he was being moved to a medical unit. Garvey was charged with assault causing harm and assault causing serious harm. A Dublin Circuit Court jury found him not guilty on both counts.
After the acquittal, prison authorities initiated disciplinary charges alleging discreditable conduct and the unnecessary or undue use of force or authority. The particulars repeated the allegation that Garvey kicked Fogarty. Garvey sought judicial review to stop the disciplinary process, but the High Court refused his application. He appealed to the Supreme Court.
Delivering judgment, Mr Justice Geoghegan distinguished this case from *Mooney v An Post*, where the employer had confidential information from a person unavailable at the criminal trial and sought answers on the employee’s suitability to remain in post. He considered Garvey’s case closer to *McGrath v The Commissioner of An Garda Síochána*, in which disciplinary proceedings after an acquittal were found unfair in their specific circumstances.
The judgment explained that an acquittal does not create a general bar or estoppel against a disciplinary inquiry. The outcome depends on the surrounding circumstances and their cumulative effect. Here, the court cited the lengthy criminal trial, the central credibility dispute and the overlap in allegations, evidence and witnesses. It concluded that conducting the inquiry would be a “basically unfair procedure.”
The court allowed the appeal on that ground alone. It rejected the other grounds, including claims concerning objective bias and delay, and made no final decision on whether fair procedures might require legal representation in another sufficiently important case. The judgment said the exact form of order could be discussed with counsel; it does not record the terms of a final order.