Gardai not given fair procedures by superiors, court rules

Two garda∅ stationed at Arklow were entitled to have their complaints of discrimination dealt with under an agreed grievance procedure and the Garda Commissioner's failure to do so was a breach of fair procedures, the High Court declared yesterday.

Mr Justice O'Sullivan granted the declaration to Garda Michael Murphy and Garda Vincent Whelan, who alleged they had been unfairly treated by their superior officers.

However, the judge refused to grant an injunction restraining the Commissioner from transferring the garda∅ in the future or confining them to indoor duties other than for reasons or circumstances which occurred after the legal proceedings.

He also refused to grant declarations that the Commissioner was guilty of unfair procedures in making, and later revoking, the original decisions to transfer the garda∅ and to confine them to indoor duties.

He awarded costs to the garda∅ and said it was for their counsel to decide if they wished to seek damages.

The case has its roots in a large number of criminal allegations made in 1992 by a young girl and by Catherine Nevin, now serving a life sentence for the murder of her husband, Tom. A letter of complaint allegedly written by the girl was later found to be a forgery.

Both garda∅ were suspended for a period in the early 1990s while an investigation of the complaints was made by a Garda superintendent. A file was sent to the DPP who decided not to prosecute. The garda∅ took legal proceedings in relation to how they were treated. They are now back on full duties.

In his reserved judgment yesterday on the third set of proceedings, Mr Justice O'Sullivan said all the proceedings arose out of the same sequence of events. The garda∅ had taken proceedings in 1993 after they were suspended from duties on reduced pay in the context of an investigation into a large number of criminal allegations made against them.

The papers were referred to the DPP, who directed no prosecution be instituted. They were restored to their duties with full pay, recouped all withheld pay but were told they were to be transferred to other stations.

The High Court had in August 1994 found the suspension was appropriate and refused their claim for damages.

The garda∅ then took a second set of proceedings challenging the decision to transfer them from Arklow. One of the complaints made against them proved to be a forgery and, on that basis, the second proceedings were compromised and the transfers were set aside by a consent order of November 2nd, 1995.

The garda∅ were then restored to full duties but on November 29th, 1995, were told they were to be confined to indoor duties.

This third set of proceedings related to complaints by the garda∅ about being confined to indoor duties, additional transfer orders made on May 3rd, 1996, and the failure of superior officers to deal with the applicants' complaints regarding these matters.

The Garda Commissioner had argued that the restrictions on the employment of both garda∅ were an administrative decision considered necessary by the Commissioner to assuage genuine public concern regarding allegations against both garda∅.

The court was told that allegations of payments to both garda∅ and an allegation against Garda Murphy of sexual assault caused the Commissioner considerable concern.

Giving his decision, the judge said the agreed grievance procedure available did cover the complaints made by the garda∅, which arose from decisions relating to conditions of employment, and they were entitled to have their complaints dealt with under that procedure.

He was not satisfied the decision of November 29th, 1995, confining the garda∅ to indoor duties involved a deprivation of fair procedures. The Commissioner was entitled to considerable discretion in his control and management of the Garda.

The judge also held the transfer decision of May 3rd, 1996, (revoked on July 4th, 2000) was not a breach of fair procedures but stressed this conclusion was in consideration of his view there was a complaints procedure available to the garda∅.

The Commissioner was entitled to take into account the entire background to the case.