Two gardaí involved in the detention of teenager Brian Rossiter at Clonmel Garda station in 2002 have taken a High Court challenge aimed at preventing the bringing under new Garda regulations of disciplinary proceedings over an alleged failure to keep accurate custody records on the night on question.
The gardaí claim the Garda Commissioner is not entitled to hold an inquiry under new Garda regulations introduced in 2007 in relation to events of 2002 as the new regulations have altered the burden of proof to one of the balance of probabilities while earlier regulations had set a standard of beyond reasonable doubt.
If their action is successful, their counsel said it will be up to the commissioner whether to go ahead with an investigation under earlier regulations.
The court was told the disciplinary action was initiated after publication earlier this year of the findings of the Hartnett inquiry into the teenager’s detention.
Brian Rossiter (14) was discovered unconscious in a cell at Clonmel Garda station on September 11th, 2002, after he had been arrested for an alleged public order offence at 9.30pm the previous evening. He died on September 13th at Cork University Hospital.
An inquest into his death remains adjourned pending the outcome of separate High Court proceedings by the teenager’s parents aimed at having a UK forensic pathologist, who compiled a report for the parents on the cause of death, called to give evidence at the inquest. The hearing of the action by Patrick and Siobhan Rossiter against Cork city coroner Dr Myra Cullinane is due to begin tomorrow.
In separate proceedings today, Mr Justice Paul Gilligan granted Garda Anne Marie Coogan and Garda Gerard Canty leave to bring judicial review proceedings against the Garda Commissioner challenging his decision to proceed with an investigation into alleged breaches of Garda discipline arising out of the detention of Brian Rossiter.
Among the allegations being inquired into is that there was a failure to maintain accurate custody records at Clonmel Garda Station on September 10th/11th 2002.
Mr Fechin McDonagh SC, for both gardaí, said they are facing disciplinary hearings over allegations that they were in breach of Garda discipline arising out of the detention of Brian Rossiter at Clonmel Garda station.
Counsel said an inquiry into the circumstances of Brian’s arrest and detention was ordered in 2004 by the then Minister for Justice Michael McDowell. That inquiry was conducted by Mr Hugh Hartnett SC who published his findings earlier this year.
Following the Hartnett report, the two gardai were told disciplinary proceedings would be taken against them.
Counsel contended the inquiry could not go ahead under the 2007 regulations as it would be retroprospective in nature. He said there was a “substantial change” in the Garda disciplinary regulations introduced in 2007, compared to those prior that existed between 1989 and 2007. The burden of proof required to make a finding under the 2007 regulations was on the balance of probabilities but before that it was reasonable doubt.
The decision to proceed under the 2007 regulations breached the constitutional rights and entitlement to fair procedures of the gardai, counsel argued. The issue of delay in brining the disciplinary inquiry was also a factor to be taken into account.
In granting leave, Mr Justice Gilligan said it would act as a stay on the disciplinary proceedings pending the outcome of the case. He returned the case for mention in October next.
Earlier this year, the Hartnett inquiry found Brian Rossiter’s arrest was lawful and that it was not satisfied he was assaulted in the course of arrest or when he was in custody.
It also found there was a failure by the Garda Síochána to investigate all the circumstances surrounding the teenager's death and to accurately record times in the custody record, including times at which
he was given information about the reason for his arrest and his right to consult a solicitor. It also found his detention at Clonmel Garda station was unlawful.
