Garda Commissioner wins appeal on decision to dispense with probationer garda’s services

The Court of Appeal (COA) has overturned a lower court’s finding in which the Garda Commissioner’s decision to dispense with the services of a probationer garda was quashed.

In 2021, the High Court ruled there were “a number of procedural flaws” in the way the Commissioner dealt with the case of probationer Garda Thomas Murphy.

The Commissioner brought an appeal arguing, among other things, that the High Court should have dismissed the probationer garda’s case as being premature.

It was also argued the court was incorrect in concluding that the failure to provide him with certain materials at the first stage of the proceedings was a breach of his right to fair procedures.

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Mr Murphy opposed the appeal.

On Monday, the three-judge COA allowed the appeal.

Probationer Garda Murphy was 20 when in the early hours of New Year’s Day 2019, he was, what a judge described as being, “out on the town” and came to the attention of fellow gardaí. He was later charged with driving while intoxicated and being intoxicated in a public place.

In September 2020, he was fined €400 under the Road Traffic Act and disqualified from driving for three years. He appealed and the Circuit Court later affirmed the appeal.

In December 2019, he had been served with a notice that the Commissioner intended to dispense with his services.

He brought High Court proceedings challenging that decision.

The High Court’s Mr Justice Max Barrett found he was not provided with copies of materials the Commissioner intended to rely on in his decision.

The manner in which the Commissioner proposed to proceed “impinged on the presumption of innocence enjoyed by Mr Murphy in criminal proceedings against him and arising from the same alleged events that grounded the proposal to dispense with his services”, he said.

In her decision allowing the Commissioner’s appeal, Ms Justice Aileen Donnelly, on behalf of the COA, said she was satisfied the court should set aside the High Court’s finding that Mr Murphy “was constrained in such submissions as he could make by the presumption of innocence that he enjoyed in the not-yet-fully complete criminal proceedings”.

It was an error on the part of the High Court judge to reach that conclusion having regard to the particular pleadings and arguments made in the case, she said.

His conclusion was based upon considerations that were not part of the grounds upon which leave to apply for judicial review had been granted, she said.

The ground as pleaded was restricted to his presumption of innocence being breached by the determination of the Commissioner. No such determination was made, she said.

She was satisfied that the finding of the trial judge that the serving of the (dispensing with services) notice constituted a breach of the presumption of innocence must be set aside.

Ms Justice Donnelly also found the challenge to the notice was premature in that the procedure could not be said to have gone irremediably wrong.