A detective garda who was severely criticised by the Court of Criminal Appeal last year when it found there was a miscarriage of justice in the case of Co Donegal publican Mr Frank Shortt was granted a temporary High Court order yesterday preventing his dismissal.
The court was told the dismissal was due to come into effect at midnight last night.
Det Garda Noel McMahon, against whom allegations have also been made at the Morris tribunal inquiry into Garda activities in Co Donegal, was also given leave by Mr Justice Butler to seek a number of orders against the Garda Commissioner.
The case will come before the High Court again next Thursday.
Applying for the orders yesterday, Mr Bruce Antoniotti SC, for Det McMahon, said his client was currently suspended on two-thirds pay. The Garda Commissioner had issued a dismissal order dated May 2nd last which purported to come into effect from midnight last night.
If the dismissal notice took effect from last night, Det McMahon would be in a very difficult situation. He would be left without pay and there would be implications for his good name.
The judge granted a temporary order returnable to Thursday next restraining the Garda Commissioner from acting on foot of the dismissal order.
He also gave leave to Det McMahon to seek, in judicial review proceedings, orders quashing the commissioner's decision to issue the dismissal order and directing the commissioner to carry out an inquiry, under Garda disciplinary regulation, in relation to the alleged breaches of discipline.
It was submitted that the dismissal notice was issued on grounds that the commissioner was in no doubt that Det McMahon had committed a breach of discipline of Garda regulations in his conduct as a garda.
The commissioner had stated that Det McMahon's conduct in the trial of Mr Frank Shortt in 1995 was capable of or reasonably likely to bring discredit on An Garda Síochána. The commissioner had said Det McMahon gave evidence which had been found by the Court of Criminal Appeal last July to be deliberately false and evasive and this was a factor in the court's finding that Mr Shortt's conviction was a miscarriage of justice.
Det McMahon complained that neither he nor the commissioner were parties to the Court of Criminal Appeal's proceedings. Det McMahon was a "mere witness" in the court and as such had no right of representation. The principal or primary accusers, he claimed, were his wife, Ms Sheena McMahon, and Ms Adrienne McGlinchey.
The court heard that Det McMahon was now, in his capacity as a garda, a witness before the Morris tribunal. He had requested the Garda Commissioner to take no further action until the tribunal had concluded and reported findings. The commissioner refused.
At the Court of Criminal Appeal hearing, a statement of Ms McMahon was adduced in evidence. This had also been adduced in evidence before the Morris tribunal. Relevant facts concerning the making of the statement had subsequently emerged and were adduced in evidence before the tribunal but not before the court.
Det McMahon believed all relevant facts concerning the statement ought to have been before the court.