A Garda sergeant who allegedly put his hand on the leg of a 19year-old male student and squeezed his testicles, yesterday won his High Court challenge to a decision ordering him to resign or be dismissed from the Force.
Sgt Michael Deasy, stationed at the Phoenix Park, Dublin, had been charged with discreditable conduct. He won his action on the grounds that the Garda disciplinary procedures were flawed because of an inadequate and ambiguous discipline form issued to him.
Mr Justice Geoghegan held that the person facing allegations must know precisely what the discreditable conduct alleged is. That was never clear in Sgt Deasy's case, the judge said.
He concluded that the sergeant did not have the benefit of fair procedures.
If an analogous activity was alleged to have occurred with a female, there was a major question mark over whether it would necessarily be described as "discreditable conduct" or, at the very least, whether Sgt Deasy could necessarily be expected to know it was such, the judge said.
Sgt Deasy was left in the dark about whether the question of the alleged conduct being consensual or non-consensual was regarded as relevant and whether the fact that the conduct was homosexual rather than heterosexual was considered relevant, he said.
It was alleged that on October 25th, 1995, Sgt Deasy had given a lift to a student while driving on Castleknock Road, Dublin, and had put his hand on the student's leg and squeezed his testicles. It was also alleged that Sgt Deasy parked on Carpenterstown Road, let back the passenger seat and lay over the student and tried to kiss him.
The Garda authorities claimed the sergeant had conducted himself in a manner which he ought to have known would be prejudicial to discipline or reasonably likely to bring discredit on the Garda.
Mr Justice Geoghegan noted that a "subjective element" had been introduced. It was not enough that the conduct would bring discredit on the force, but there had to be "actual or constructive knowledge" on Sgt Deasy's part that it would.
The judge said Sgt Deasy's solicitors had asked whether their client was alleged to have been involved in committing a criminal offence and whether the fact that the student was male was part of the allegation of breach of discipline.
The solicitors also asked whether the fact that the behaviour had the appearance of being "homosexual in nature" formed any part of the allegation of breach of discipline.
Unfortunately, Mr Justice Geoghegan said, those questions remained pertinent long after the formal charge was laid and were the problems underlying the sergeant's defence at the inquiry and subsequent appeal.
Mr Justice Geoghegan said it was not alleged that Sgt Deasy was on duty at the time of the alleged events or that the alleged sexual activity was non-consensual or that anything was done within the view of others.
"Given the statutory and public tolerance of consensual homosexual activity in private between adults, it may be a tenable view, putting it at its minimum, that in considering whether such conduct was discreditable or not, the homosexual aspect should not be taken into account," he said.
The student had been a stranger to Sgt Deasy and, on the evidence, was heterosexual. But if, for instance, he had been a homosexual friend, that might be highly relevant as to whether the conduct was discreditable or not.
He was making these points to demonstrate that the bald facts in a charge might not be sufficient if they only constituted discreditable conduct in the context in which they happened and where that context was not in any way referred to in the form of charging document.
Mr Justice Geoghegan accepted that not every detail of the events underlying the charge of discreditable conduct would have to be set out in the formal documentation. Nor did he believe that every fact that was set out need necessarily be proved.
In the context of this case it was not, in his view, of much material importance whether the student let back the passenger seat at the request of Sgt Deasy, as was originally claimed, or whether Sgt Deasy did it himself, as later alleged.
Where the factual context was vital to understanding what the discreditable nature of the conduct was alleged to be, it must be stated at least in summary form and without ambiguities, the judge said.
There was no doubt that, even on an interpretation most favourable to Sgt Deasy, there was a context which rendered the sergeant's conduct reprehensible and discreditable.
Even if what happened was technically consensual there was uncontested evidence indicating that the sergeant took advantage of a student walking home at night who was unknown to him.
But Sgt Deasy was entitled to know exactly what he was being charged with and without that he had no way of knowing the reasoning behind the decision of the tribunal of inquiry, which simply found the charge against him was proved. The appeal board, in turn, gave no reasons and affirmed the inquiry's decision.
The judge said he wanted to make it clear that even heterosexual consensual conduct in similar circumstances might, depending on the facts, give rise to a finding of discreditable conduct and a recommendation of dismissal. But, in his view, that was beside the point.