The High Court has dismissed a challenge by a Co Donegal garda to her suspension, which came into effect the day after the Court of Criminal Appeal (CCA) certified a miscarriage of justice in the case of Co Donegal nightclub owner, Mr Frank Shortt.
Garda Martina Fowley was also ordered to pay the costs of her unsuccessful action, which could be as high as €100,000, but a stay on the costs order was granted pending an appeal.
The Garda authorities had argued the suspension was justified in the light of remarks made by the CCA about Ms Fowley in relation to her involvement in an undercover Garda operation carried out at Mr Shortt's Point Inn nightclub at Quigley's Point, Inishowen, in 1992.
Among other comments, the CCA had referred to Ms Fowley apparently countersigning notes related to the Point Inn operation of Det Garda Noel McMahon. The CCA found that Det McMahon and Supt Kevin Lennon had invented and deliberately suppressed evidence for the trial of Mr Shortt. Mr Shortt served a three-year prison sentence after being convicted of allowing the sale of drugs at the Point Inn. His conviction was quashed in November 2000, with no opposition from the DPP, and on July 31st last the CCA certified a miscarriage of justice in the case.
It was claimed by Ms Fowley that her three-month suspension in the immediate aftermath of the CCA decision was a "PR exercise" by the Garda authorities. She claimed she was informed of her suspension by phone at 8.40 p.m. on August 1st, shortly before it was broadcast on the RTÉ television news at 9 p.m.
In his judgment, Mr Justice Ó Caoimh was critical of the manner in which the decision to suspend the garda was communicated to her, saying it lacked respect for her.
However, he was satisfied the decision to suspend was not punitive in nature, and could not be considered as in any way prejudging the disciplinary process which was now under way.
Ms Fowley had claimed Garda regulations provided that only the Garda Commissioner may suspend a garda for a period of more than 72 hours. She submitted she was suspended by Assistant Commissioner Michael Murphy for a period of three months, and that her suspension was unlawful.
She argued the decision of August 1th was made without any prior notice to her, that she was given no opportunity to make representations in advance and that she had not been given adequate reasons for the decision.
The judge said the decision was taken in light of the 1989 Garda disciplinary regulations, and could not be construed as anything other than a "holding operation".
He said Ms Fowley was entitled to be heard in relation to the charges against her and was entitled to make representations in relation to the suspension but this entitlement was not a prerequisite to the suspension itself.
He was satisfied the reasons advanced at the time were a sufficient statement of the basis of the decision of the Garda authorities.
Referring to how Ms Fowley was told of her suspension, he said decisions were taken to release to the press the news of the suspension of members of the Garda prior to those gardaí being informed of the decision in an appropriate manner.
He was satisfied those "on the ground" in Donegal had sought to do their best in light of the apprehension that Ms Fowley might learn of her suspension on the 9 p.m. news prior to being informed of it. The anxiety to be seen to have addressed the CCA decision took precedence over the dignified notification to Ms Fowley of a grave decision affecting her. However, those circumstances did not warrant quashing the decision itself.
