A garda has brought a High Court challenge over being disciplined after officers, including members of the armed response unit, entered the wrong apartment during a search for drugs.
Garda Derry O’Brien was given a formal caution by his superiors despite the fact that what occurred during the February 2021 incident was viewed as “a genuine error” and all the officers involved had acted “in good faith”.
Gardaí in Cork were, based on confidential information, investigating a known drug user who was believed to be storing quantities of diamorphine for sale and supply from her apartment in the city.
Garda O’Brien, who is stationed at Anglesea Street in the city, made inquiries about obtaining a search warrant for the apartment. He checked the suspect’s address on the Garda Pulse system and visited the apartment complex to assess suitable access and egress options.
Support was sought from the Armed Support Unit (ASU) and a search warrant was obtained. When the warrant was executed, and the apartment had been secured, it was established that the premises entered was not the intended target. It was occupied by an unrelated third party.
The apartment was not searched, a Garda sergeant spoke to the occupant, and the officers departed the premises shortly after gaining entry. It was subsequently established that the address of the intended target was not the same as what was recorded on the Pulse system.
There were three apartments in the complex with the same number but slightly different addresses.
Following a complaint by the occupant, the Garda Síochána Ombudsman Commission (Gsoc) opened an investigation.
Garda O’Brien claims Gsoc recommended that consideration be given to the bringing of disciplinary proceedings against him. Following the watchdog’s decision, his superiors opened disciplinary proceedings which resulted in a finding being made against him.
While the Garda superintendent investigating the matter accepted that a genuine error had been made, that officer deemed a caution was the appropriate, fair and necessary sanction to impose for what was deemed to be a “neglect of duty” by Garda O’Brien. He appealed the sanction to an assistant commissioner, who upheld the sanction.
Garda O’Brien claims that, in breach of fair procedures, he was not given an opportunity to make submissions on the matter before the finding against him was made. He also claims he was not asked for submissions when his request for a review of the finding was before the Assistant Commissioner.
In judicial review proceedings against the Garda Commissioner, Garda O’Brien seeks various orders and declarations including an order quashing the decision that he had breached Garda discipline and should be sanctioned by way of a caution.
Represented by Kieran Kelly BL, instructed by Carey Murphy & Partners Solicitors, Garda O’Brien also seeks to quash the finding of the review of the sanction that he neglected his duty. He further seeks declarations that the disciplinary proceedings were contrary to natural justice, law and fair procedures.
The matter came before Ms Justice Niamh Hyland. The judge, on an ex parte basis, granted the plaintiff permission to bring his challenge. The matter will return before the court in November.