Superintendent's dismissal clearly invalid

In a democratic society based on the rule of law, each individual has a fundamental right to fair procedures in any determination by a public authority which will expose him or her to punitive consequences.

This applies as much to a member of the Garda Siochana who is the subject of allegations of wrongdoing as it does to any other citizen in the State.

The procedural entitlements of an individual member of the Garda will be affected by the concomitant need to protect other legitimate interests, such as police accountability to the public and the maintenance of an efficient and effective police service.

In no circumstances, however, can the latter be used as a cover for the demands of managerial convenience, bureaucratic inertia or political expediency. Equally, they can never be used as an excuse to deny the individual the benefit of basic due process before being exposed to a penalty as severe as dismissal from the Garda. To hold otherwise would call into question the State's very commitment to democratic values and the rule of law. It is for this reason that the case of William Geary is of such public importance.

If Geary's account of his dismissal is accurate, he was dismissed from the Garda, with all that that entails in terms of loss of office, employment, pension, benefits and reputation, without being afforded even the semblance of due process.

The allegations against him, if proven, would have constituted the criminal offence of misfeasance in public office, not to mention more serious possibilities such as treason, which carried the death penalty in 1928.

The Garda investigation, however, not only flouted the most basic requirements of criminal procedure, but it also subjected Geary to unlawful trespasses against his person and property.

The Garda authorities cannot justify their actions on the grounds that they were concerned only with the disciplinary dimension to the allegations. If Geary's recollection is accurate, it is apparent that they also acted without any regard for the basic tenets of natural justice and the positive requirements of the disciplinary regulations in force at the time, namely the Garda Siochana (Discipline) Regulations 1926.

Under these regulations, Geary should have been supplied with a written statement of the allegations against him as soon as possible after the allegations were made. This statement should have set out the particulars of the alleged offence, with sufficient details of time and place as would leave him under no misapprehension as to its nature, and a summary of the additional evidence available.

He should then have been given an opportunity to state his admission or denial of the offence and to attach a written explanation and a list of the witnesses, if any, whose evidence he wished to be taken.

Not only did the Garda authorities fail utterly to follow these basic procedural requirements, they seriously compounded their failure by ambushing Geary with the allegations, concealing the nature of their evidence and falsely misrepresenting evidence against him. The procedural defects in initiating the disciplinary action against Geary were sufficient in themselves to render the whole proceedings null and void.

The abuse of process, however, ran much deeper.

Since the allegations against Geary clearly involved the possibility of dismissal, they should have been the subject of a sworn inquiry where the charge would have been preferred by Chief Supt O'Duffy. It appears that the sworn inquiry took the form of the initial interview by Commissioner O'Duffy, Deputy Commissioner Coogan and Chief Supt Neligan.

It has since transpired, however, that Chief Supt Neligan was the actual complainant in the case. Accordingly, it was a fundamental abuse of process for him to sit on the sworn inquiry into the truth of the substance of the allegations. That factor alone is sufficient in itself to render unlawful the entire disciplinary proceedings (even if they had been lawfully initiated).

That initial interview also failed to satisfy other basic procedural requirements applicable to a sworn inquiry under the regulations.

Geary should have been, but was not, furnished with a list of witnesses in support of the charge. He was not invited to submit the names of witnesses whom he wished to have called. He was not given the opportunity to object to any member of the inquiry.

No witnesses were presented for examination on oath in his presence, as specifically required by the regulations.

Accordingly, Geary was denied his right to cross-examine the witnesses against him. Equally, he should have been, but was not, given the opportunity of having a solicitor to assist him in the conduct of his defence.

Since no witnesses were called for examination, there is no written record of their evidence, despite the fact that the regulations specifically require such a record to be taken.

The combined effect of these serious failures to comply with the clear terms of the regulations must call into question whether the initial interview was ever meant to be a sworn inquiry.

Since the holding of a sworn inquiry was a prerequisite for dismissal, under the regulations it must follow either that Geary was dismissed without the holding of a sworn inquiry or that he was dismissed consequent on a sworn inquiry which patently failed to comply with the basic rules governing such an inquiry.

In either case, the result is the same; Geary's dismissal was not in accordance with the regulations.

It is arguable that the 1926 regulations do not govern the dismissal of individuals holding officer rank (which includes superintendent) in the Garda Siochana. Even if that argument could be sustained, it would not have any substantive effect on the legality of Geary's dismissal.

While the legislation would appear to give the government an absolute power of dismissal over officers in the Garda, it has always been a fundamental tenet of the common law (and now constitutional law) that such a power must be exercised in accordance with the principles of natural justice, namely the right to be heard, and the benefit of a decision-making process untainted by the appearance or reality of bias.

Of critical importance to Geary's case is that the right to be heard embraces much more than simply being given the physical opportunity to say something by way of explanation, defence or remorse. It also entails a number of ancillary rights, without which the right to be heard would be nothing more than an empty shell.

When an individual is threatened with dismissal from office, the contents of these ancillary rights will vary depending on the gravity of the consequences of dismissal and on the reasons why the power of dismissal was conferred in the first place.

In the case of an alleged breach of discipline which could result in dismissal from the office of superintendent in the Garda Siochana, it is reasonable to suppose that the right to be heard will include the right to know the nature of the alleged breach of discipline; the right to know the nature and extent of the evidence in possession of the Garda authorities; the right to avail of legal representation; the right to test the credibility of the evidence through examination and cross-examination of witnesses; the opportunity to prepare and present a case in defence and the right to an oral hearing before an impartial tribune.

In other words, the procedural entitlements laid out in the relevant provisions of the Garda discipline regulations as described above.

It must follow, therefore, that the procedure followed in Geary's case constituted not only a fundamental breach of the 1926 regulations but also a flagrant breach of the right to be heard, as enshrined in the common law principles of natural justice.

In addition, it also amounted to a clear breach of the protection against bias. Since Chief Supt Neligan was the de facto complainant in the case, his inclusion as one of the three individuals conducting the quasi-judicial hearing conveyed at least the appearance of bias. That would be sufficient in itself to breach the principles of natural justice.

If Geary's case was to be repeated today, it would undoubtedly be denounced also as a breach of the principles of constitutional justice.

The consequences of a failure to follow the principles of natural justice in dismissing Geary from the force are that his dismissal was unlawful, null and void. The issue of whether or not he was guilty of accepting a bribe is irrelevant for this purpose.

What matters in law is that Geary's dismissal was not in accordance with the basic tenets of fair procedures and for that reason alone it would have been quashed by the High Court had he challenged it by way of judicial review within the requisite time limit.

Unfortunately, the time limit for such actions is generally three months, although the High Court does retain a discretion to grant leave to apply for a judicial review out of time. It is highly unlikely, however, that this discretion would be exercised to grant leave for an application which was more than 70 years out of time.

Nevertheless, it does not follow that Geary must be denied a remedy. Where a decision has been taken in breach of the principles of natural justice, the legal position is that the decision has never been validly taken.

When Commissioner Edmund Garvey's dismissal was found to be in breach of natural justice, for example, the strict legal position was that he had never been dismissed from the office of commissioner. In the eyes of the law he remained the commissioner until such time as he either resigned from office or was validly removed.

In the meantime, the appointment of and all decisions taken by his reputed successor as commissioner were of no legal effect. Similarly, in the eyes of the law, Geary has never been validly dismissed from the office of superintendent. His reputed dismissal has always been void and of no effect on account of the failure to abide by the principles of natural justice.

The invalidity of his dismissal does not depend on a formal ruling of the court to that effect. It follows directly and automatically from the failure to comply with the principles of natural justice.

The significance of this for Geary's case is that the Government can lawfully acknowledge and act upon the fact that he had never been lawfully dismissed from the office of superintendent in the Garda Siochana, as his purported dismissal clearly was in fundamental breach of the principles of natural justice and the Garda disciplinary regulations in force at the time.

For this to happen, the Government need only accept that Geary's account of the procedure lea ding up to his dismissal is basically accurate. This should not give rise to any difficulty, as there never has been any suggestion that his recollection of the procedure was faulty.

There is no need to establish if he was actually guilty of accepting a bribe unless the Government wished to take proceedings to have him validly dismissed - hardly a viable option more than 70 years after the event.

It follows, therefore, that the official excuses for refusing to reopen the case are all red herrings which do little credit to the government of a democracy based on the rule of law.

The issue never should have been whether William Geary actually accepted a bribe. Rather it is whether he was afforded the basic rights of any citizen in a democracy based on the rule of law to be treated in accordance with due process and fair procedures before being removed from a public office with all that that entailed in terms of loss of employment, pension, benefits and reputation.

There can be little doubt that Geary has been denied these basic entitlements. The fact that this has happened at all to a Garda superintendent is disturbing in itself.

The persistent failure of successive governments over 70 years to remedy the injustice is a gross denial of the basic principles of democracy and the rule of law upon which the State is founded.

It is not too late for the Government to honour its obligations by acknowledging that William Geary was never validly dismissed.

Prof Dermot Walsh is director of the Centre for Criminal Justice at the University of Limerick