A probationer garda, facing imminent dismissal for alleged inappropriate sexual behaviour with a 17-year-old girl at a party in Co Monaghan, will win a stay of execution on Tuesday.
Mr Justice Garrett Simons granted leave on Monday in the High Court for the garda to bring a judicial review challenging investigative procedures and the recommendations of a board of inquiry set up by the Garda Commissioner, but declined to make an order staying the dismissal.
The judge told Mark Harty SC, counsel for the garda concerned, that his agreement to lodge an appeal on behalf of his client against the board’s findings before midnight on Tuesday would automatically trigger a stay of dismissal.
He put the matter in for mention early in the new legal term in April and said it would be a matter for the garda’s legal team whether interlocutory injunctions would be initiated at that stage.
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Harty, who appeared with Martin Moran Solicitors for the garda, told the judge that an allegation of rape against his client had not been proceeded with on directions of the Director of Public Prosecutions (DPP) following alleged incidents at the party in his home.
Counsel said that although allegations of inappropriate sexual behaviour had been withdrawn by the girl, the board had adopted the attitude that while she had withdrawn her complaint from a criminal investigation she had not withdrawn her complaint from the disciplinary proceedings which had gone ahead.
Harty said the garda was also facing disciplinary procedures relating to his allegedly having driven his car while drunk following the party and having flashed his Garda identity allegedly in a bid to evade prosecution for drunk driving.
The court heard the matter investigated by both the Garda Ombudsman and the board of inquiry involved allegations of inappropriate sexual activity with the teenager which, although she had subsequently withdrawn them, had nevertheless been progressed.
Mr Harty said the board’s finding that the girl had not withdrawn her complaint relating to the disciplinary proceedings was irrational and not supported by evidence. He claimed the board had erred, acted in breach of fair procedures and had admitted inadmissible hearsay evidence.
The garda involved had stated that any sexual activity between himself and the girl had been consensual.
In his application for judicial review the garda stated he was suspended from duty in August 2020 arising from the sole ground that an allegation of rape had been made against him which was later withdrawn and not prosecuted on the direction of the DPP.
The matter will return before the court on April 14th. The judge was told that an appeal against the decision of the board, which would provide an alternative remedy to stay instant dismissal, would be made before midnight on Tuesday.
