Efforts by Garda Commissioner Drew Harris to dismiss a member of the force who had a sexual encounter with a “vulnerable” member of the public in a Garda station have been blocked by the Court of Appeal.
In upholding a previous High Court decision, it found Garda Raymond Hegarty had already been disciplined for the incident by way of a temporary reduction in pay.
The courts had considered whether it was lawful for the commissioner to seek his dismissal when Garda Hegarty had already been the subject of a disciplinary process under a different regulation.
A complaint had been made against him by a member of the public following the sexual incident at Lismore Garda station, Waterford, in March, 2017 and a disciplinary process was commenced leading to the establishment of a board of inquiry.
Garda Hegarty was accused of conducting himself in a manner which he knew or ought to have known would be “reasonably likely to bring discredit on the Garda Síochána”.
It related to his engaging in a sexual act with the complainant while on duty and while taking a statement of evidence from the woman relating to the arrest of her sister.
Garda Hegarty admitted the incident and the board of inquiry recommended he retire or resign as an alternative to dismissal.
He was given until November 2018 to do so but issued an appeal against the decision and was suspended from duty in line with procedure.
The outcome of the appeal was that instead of having to resign, Garda Hegarty should be subject to a four-week reduction in pay.
The appeal board considered the circumstances of the breach, the garda’s previous “unblemished” record and other mitigating factors. He had been deeply remorseful for his actions.
The board stated that “public confidence mandates that these breaches be severely punished” but noted he had been suspended from work, transferred to another station and fined the maximum allowed.
It also acknowledged the reputational damage suffered and that his personal life had been severely affected.
As a father of young children with a mortgage and a family to provide for, “taking away his right to work as a member of An Garda Síochána, would affect his ability to support his family greatly”, it decided. The initial penalty of resignation had been disproportionate, it felt.
However, Garda Hegarty found himself again suspended from duty, prompting him to seek a judicial review.
At the end of March 2020, prior to the service of the judicial review proceedings, the commissioner wrote to Garda Hegarty saying because of his behaviour, his continued membership of An Garda Síochána “would undermine public confidence” and his dismissal was therefore necessary.
Garda Hegarty believed this subverted the determination of the appeal board and was an abuse of process.
The High Court ruled in his favour. In a lengthy judgment, it “considered that dismissal represented a devastating penalty for a member of the force”.
The judge noted that the commissioner “appears to take the view that the prior process and its outcome is legally irrelevant”, a view not shared by the judge since “it disregards entirely the applicant’s rights in the matter”.
“The regulations provide an elaborate and delicately worked out set of checks and balances to ensure that a fair process, with independent oversight, is in place to have allegations of breach of discipline fairly determined and punished,” the court found.
“This is not just in the public interest, but also in the interests of members of An Garda Síochána who are subject to allegations of misconduct.”
In her judgment from last November Ms Justice Mary Faherty of the Court of Appeal upheld the previous decision, noting “the applicant is procedurally and substantively entitled to the benefits of the appeal board’s determination, which was that requiring him to resign in lieu of dismissal was a disproportionate sanction”.
The commissioner’s appeal was dismissed.
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