Garda who allegedly resisted drug search has dismissal quashed

A garda who was dismissed over allegedly refusing to submit to a drug search while off-duty at a concert is entitled to a complete re-hearing of his case before a new internal disciplinary board, the Supreme Court has ruled.

The five-judge court also unanimously quashed the August 2012 dismissal of Patrick Walsh, from Nenagh, Co Tipperary, over the incident at the 2007 Electric Picnic in Stradbally which he attended in a private capacity.

It also ordered that a 2012 decision of an appeal board finding him guilty of discreditable conduct be dismissed.

The matter must go back to the Garda Commissioner who was directed by the court to establish a new board of inquiry on the same basis as one set up in 2011.

That board must determine whether a serious breach of discipline was committed by Mr Walsh and if found guilty recommend to the Commissioner what action should be taken against him.

It was claimed that when he refused to be searched at the concert, a struggle ensued between him an a bouncer when a bag allegedly containing drugs was allegedly thrown and landed in a nearby bin.

Mr Walsh denied the bag belonged to him and when uniformed gardaí intervened, he again refused to undergo a search after being directed to do so by a garda sergeant, it was claimed.

He was cleared in the District Court in November 2008 of a charge of having 6.4g of amphetamine.

Since the alleged incident, he has been through two internal boards of inquiry and two appeal boards, the last of which ultimately resulted in his dismissal.

He also brought a number of High Court challenges including one in July 2013 which quashed the dismissal and remitted the matter back to the second appeal board.

The Garda Commissioner and the second appeal board appealed that decision to the Supreme Court.

Ms Justice Mary Laffoy, on behalf of the Supreme Court Thursday said she was satisfied to set aside the High Court decision she was sending the case back to a new board of inquiry rather than to an appeal board. She also quashed his dismissal from the force.

She agreed with arguments that the dismissal by the Garda Commissioner was based on a decision by the second appeal board to find Mr Walsh breached one rather than two disciplinary counts, as the board of inquiry had found.

As a result, the then Commissioner, whether or not he intended to do so, “scrambled” both disciplinary counts into a justification for the dismissal. The appeal board could not then unscramble the Commissioner’s decision to justify dismissal for one breach, Ms Justice Laffoy said.

Although it is seven-and-a-half years since the original alleged breaches of discipline, that period was “more attributable” to Mr Walsh having availed of appeal procedures and bringing litigation over the matter, she said.

While he was entitled to do so, and in some cases justified in doing because he was successful, she took that into consideration in deciding whether or not to prohibit a further disciplinary hearing.

While the conduct of the disciplinary proceedings since 2010 has “undoubtedly been erroneous”, the outcome of this appeal would rectify that, she said.

When balanced against the public interest in maintaining public confidence in the gardaí, what Mr Walsh had to endure since 2010 “does not warrant the exercise by this court of its discretion to prohibit the continuation of the disciplinary proceedings”, she said.