Ms Justice Siobhán Phelan said there is a duty of candour and an obligation for material to be put before the court, but “material is not here” regarding the process of deciding to repeatedly extend the suspension of Garda Paul Baynham with basic pay.
Gda Baynham argues he does not know the reasons for his suspension, and its continuation is unlawful.
The similar judicial review actions of Garda Alan Griffin, Garda Niall Deegan and Garda John Shanahan are travelling alongside Gda Baynham’s case, the hearing of which concluded on Wednesday. All four deny any wrongdoing and have at no point been arrested or charged.
Ms Justice Phelan said she will try to give judgment on the matter before Christmas.
The four gardaí were all attached to the Roads Policing Unit at Henry Street in Limerick before being suspended with basic pay in November 2020.
The suspensions arose out of an investigation by the National Bureau of Criminal Investigation concerning the alleged “squaring” of fixed charge notices, where these would allegedly not be written up, not prosecuted in court or would be cancelled on the system.
The court heard previously that eight members were suspended out of some 130 members interviewed or investigated as part of the probe.
On Wednesday, Ms Justice Phelan was told by senior counsel for the State and Garda Commissioner that Gda Baynham knows the matters surrounding his suspension and has never asked the commissioner for more reasons.
Conor Power SC said Gda Baynham has not asked internally for the disciplinary process to be expedited and did not make submissions to the commissioner regarding his suspension.
The judge said she was “struck” by the commissioner’s approach to information sharing in this case which is “entirely different” from his approach in another cited as case law by Mr Power.
Mark Harty SC, for Gda Baynham, said material explaining the rationale for the suspensions has been “withheld” from his client and the court. He submitted that the commissioner “does not want the court to see this” reasoning.
“This game of cups, where the court is expected to find out exactly where the nut is hiding under the cups because it is not shown by the commissioner ... That is crucial to the case,” he added.
Mr Power said Gda Baynham is in “no doubt” about why he was suspended and “knows the issues”.
Previously, Mr Power told the court that files, arising out of the bureau’s investigation, were sent to the Director of Public Prosecutions (DPP) more than three years ago. The commissioner is awaiting a decision from the DPP, which is an independent office.
While this is an unfortunate situation, the delay is not of the commissioner’s making, he said.
The court also heard submissions from both sides on Gda Baynham’s claim that a regulation of the An Garda Síochána (Discipline) Regulations of 2007 is unlawful and should be struck down.
He alleges the regulation empowering the commissioner to suspend a member where it is in the “interests of An Garda Síochána” is a discretion wider than that contemplated by the 2005 An Garda Síochána Act.
Mr Power confirmed to the judge that the issue has not been considered by the court before. He submitted the regulation is lawful.
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