A High Court judge has ordered that a disciplinary process brought against a serving garda be stopped after he found the process to be “tainted” beyond the point of redemption.
Caoimhe Busher, a probationer garda member since 2018, has been the subject of a disciplinary investigation concerning how she allegedly investigated and input information into the Garda Pulse system related to a 2019 road traffic incident in South Dublin.
She denies any wrongdoing.
In her proceedings, brought against the Garda Commissioner last year, Ms Busher said the internal investigation into the alleged disciplinary breach has been ongoing since 2020. Ms Busher also claimed her probation period was extended seven times and that this was a breach of her rights.
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In a judgment delivered on Thursday, Mr Justice David Nolan ruled in favour of Ms Busher, after he found that the disciplinary process taken against her was “tainted”.
This ruling arises from a “prejudicial” letter, written by a Garda member investigating Ms Busher’s alleged disciplinary breach, that, “in essence”, made findings of guilt against her, the judge said.
The letter, dated November 5th, 2020, was prepared by the investigating garda as a covering document to accompany his file on Ms Busher’s case.
It is standard practice for a covering document to accompany an investigation file, to assist the Garda Commissioner in deciding whether to establish an internal inquiry board to adjudicate on an alleged disciplinary breach, the judge noted.
The covering letter, however, was furnished, along with other material, to an internal board of inquiry convened to adjudicate on the allegation against Ms Busher. The letter was also furnished to Ms Busher.
The board was dissolved before hearing the case on account of one of its members retiring.
The letter was not furnished to a second inquiry board that was convened, the judge noted. When the second board became aware of the letter while at hearing – it was raised by Ms Busher’s solicitor – they formed the view that they could not continue in their roles and stood down.
“By allowing the letter to circulate before the board, no matter which board, the view of the investigating officer will be known well before any evidence is given. The concern must be that the guilt of the applicant [Ms Busher] would be determined before the board gets to hear any evidence, thus setting at naught the whole purpose of the board of inquiry,” the judge said.
While noting that the investigating officer is entitled to his views, the judge said the first inquiry board should not have been informed of those views or the letter. When they were informed of it, it followed that the letter was given to the applicant.
“The canary is out of the cage. The respondents can never get it back into the cage,” the judge said. “If the process is not stopped, a third board of inquiry will find itself in exactly the same position, on being informed of [the letter’s] contents.
“I have concluded that this process is ‘irredeemably wrong’ or damaged and is tainted by the letter of November 5th, 2020. In those circumstances, it would be entirely wrong to allow it to continue,” Mr Justice Nolan said.
The judge said he would make an order of prohibition in regard to the disciplinary process brought against Ms Busher.
He also said his provisional view is that Ms Busher is entitled to her legal costs. He listed the matter for next month for submissions on the final order and costs.
