Garda clerical worker loses challenge over child porn dismissal

A clerical worker based at Garda HQ has lost his High Court challenge to the Garda Commissioner's decision to dismiss him after he admitted having child pornography at his home.

Commissioner Martin Callinan made it "perfectly clear "in his October 2012 letter dimissing Anthony Purdy that commission of the offence of possession of child pornography was one the Garda Síochána "simply cannot condone", High Court president Mr Justice Nicholas Kearns said.

It was "difficult to see how the Commissioner could have been more explicit" as he had told Mr Purdy: "I cannot allow this type of conduct within An Garda Síochána", the judge added.

Mr Purdy, Rosscourt Heights, Lucan, Co Dublin, had pleaded guilty before Dublin District Court in 2010 to a single charge of possessing child pornography after video images were found by gardaí on an external computer hard drive in a bedside locker at his home on April 13th, 2009.

The charge against Mr Purdy, a clerical officer attached to the fingerprint section at Garda Headquarters, Phoenix Park, was struck out in 2011 after he paid 2,500 to charity.

Disciplinary proceedings

Arising from that matter, internal disciplinary proceedings were taken against Mr Purdy, conducted by the Civilian Human Resources Directorate of the Garda. Mr Purdy was suspended with pay from July 2010.

The Garda Commissioner decided in early 2012 Mr Purdy should be dismissed from his job. Mr Purdy appealed to the Civil Service Disciplinary Appeals Board which, in a non-binding recommendation of July 2012, said the sanction of dismissal was too severe.

The matter was remitted to the Garda Commissioner, who in October 2012 reiterated his earlier decision that Mr Purdy should be dismissed and repeated his stated reason - that he could not allow such conduct within the force.

Mr Purdy then challenged that decision in High Court judicial review proceedings.

Guilty plea

In his reserved judgment today, Mr Justice Kearns said he was satisfied the dismissal decision was due to the fact Mr Purdy had pleaded guilty to a criminal offence, the seriousness of which was reflected in the penalty attached to it.

On summary conviction, that penalty was a fine not exceeding €1,500 or imprisonment for a maximum term of 12 months. On indictment, the penalty was a fine not exceeding €5,000 or imprisonment for a maximum five years.

The Commissioner had told Mr Purdy he had "engaged in serious misconduct" in pleading guilty to having child pornography and had said he could not allow such conduct within the Garda. Mr Purdy was "never in any doubt" and "could never have been in any doubt" as to the reason for the decision, the judge added.

The appeal board's view was "a mere recommendation and, while the Civil Service Disciplinary Code stated it was expected the board's opinion will be taken into account, it was always open to the Commissioner to take a different view, he said.

Exceptional event

While the Code stated the decision to implement disciplinary action contrary to the board's opinion should be "an exceptional event", the term exceptional event did not mean exceptional reason, he said.

It was well within the Commissioner's authority to view this offence, to which Mr Purdy had pleaded guilty, as "an exceptional event" and exercise his discretion to take a different decision from the board, the judge found.

The Commissioner was entitled to take the view the conduct admitted by Mr Purdy amounted to "serious misconduct", including knowingly acting in an illegal way with implications for employment, the judge added.

He noted Mr Purdy was still within the six-month period allowed for an appeal to the Employment Appeals Tribunal. In considering any such claim of unfair dismissal, the tribunal will require the Commissioner to show there were substantial grounds for dismissal and he had followed fair procedures, the judge said.