Authorities 'entitled' to suspend garda

Information relating to Garda Tina Fowley in the Court of Criminal Appeal's judgment certifying a miscarriage of justice in the case of Co Donegal nightclub owner Mr Frank Shortt entitled the Garda authorities to suspend her, counsel for the Garda Commissioner told the High Court yesterday.

Ms Fowley, with an address at Beechwood Park, Letterkenny, was suspended with effect from 5 p.m. on August 1st last to 9 a.m. yesterday. Notice of a further three-month suspension period, effective from 9 a.m. yesterday, was served on Ms Fowley two days ago, it emerged during yesterday's hearing.

The suspension arose after the CCA delivered its judgment on July 31st certifying a miscarriage of justice arising out of the conviction of Mr Shortt for knowingly allowing the sale of drugs at his nightclub, the Point Inn, Inishowen, in 1992. Mr Shortt served three years in jail and his conviction was quashed in November 2000 with no opposition from the DPP.

In its decision on Mr Shortt's application for a certificate declaring a miscarriage of justice, the CCA found two senior gardaí - Supt Kevin Lennon and Det Garda Noel McMahon - had invented and deliberately suppressed evidence for the trial of Mr Shortt to address serious weaknesses in the case against him. The CCA also made references to Ms Fowley's involvement in the Point Inn investigation and subsequent trial of Mr Shortt.

Ms Fowley took judicial review proceedings against Garda Commissioner Mr Pat Byrne and Assistant Commissioner Mr Michael Murphy challenging her suspension. The hearing concluded yesterday and Mr Justice Ó Caoimh will deliver judgment on November 22nd.

In an affidavit for the hearing, Ms Fowley outlined an explanation of her role in the Point Inn investigation and addressed the references to her in the CCA judgment. However, those sections in the affidavit were ruled inadmissible by Mr Justice Ó Caoimh.

Yesterday, Mr Eamon Leahy SC, for the Garda, read passages of the CCA judgment which made references to Ms Fowley, including passages which referred to her apparently countersigning notes of Det McMahon's in relation to the Point Inn operation. It also referred to Ms Fowley's additional statement of evidence for Mr Shortt's trial, which, Mr Leahy said, appeared to contain changes which mirrored changes in Det McMahon's additional statement.

The judgment also stated that, as Ms Fowley had not been called by either side to give evidence at Mr Shortt's hearing, the CCA did not propose to make any finding in relation to these matters.

In these circumstances, the court should hold that it was reasonable to decide Ms Fowley should be suspended, Mr Leahy said. What was being considered was a decision to suspend a member of a disciplined force for a three-month period. The suspension did not contain connotations of guilt or decision-making and was neither unfair, irrational or unreasonable.

Counsel rejected arguments that Ms Fowley was entitled to be given notice that suspension was being considered or entitled to make pre-suspension submissions. He argued there was no requirement on the Commissioner to give notice of suspension. What was involved here was the start of a process, not the conclusion of it. There would be an investigation into the alleged breaches of discipline.

Mr Leahy also rejected submissions by Ms Fowley that only the Garda Commissioner may suspend a member for more than 72 hours.

He said the Garda regulations provide that an Assistant Commissioner may in certain circumstances suspend a member of the force.

He accepted the CCA decision in Mr Shortt's case had given rise to publicity. However, there was no evidence to support claims that the decision to suspend was driven by the media, counsel added.

An application by Ms Fowley's lawyers to cross-examine Assistant Commissioner Murphy, who had signed the suspension notice, and Supt James Gallagher, who delivered the notice of suspension, had been withdrawn at the outset of yesterday's hearing, he noted.

Replying, Mr Garret Cooney SC, for Ms Fowley, said it was "passing strange" that the Assistant Commissioner, in the original notice to suspend, made no specific reference to the passages in the CCA judgment which had been just read to the court.

He argued the Garda authorities wrongly suspended Ms Fowley on the basis of their misconstruction of the judgment of the CCA as a finding of wrongdoing against Ms Fowley.

In such circumstances, Ms Fowley should have been heard, it should have been put to her what the CCA said about her and she should have been given an opportunity to respond.

She was not given that but was condemned unheard and suspended in damaging and humiliating circumstances.