Garda fails to halt investigation over claim he used ‘offensive’ language to foreign national

A disciplinary investigation into an allegation a Garda behaved unprofessionally by using offensive language towards a foreign national in custody can proceed following a decision of the Court of Appeal.

Because Garda Thomas McKenna was acquitted at the Circuit Court on two other charges concerning that person, the Garda Commissioner cannot proceed with a disciplinary investigation into those charges, the three judge court also said.

The two charges were of using unreasonable force towards the prisoner and failing to behave respectfully towards him, having regard to his right to bodily integrity.

Garda McKenna, attached to Waterford Garda Station, remains suspended on 90 per cent pay from operational duties pending the disciplinary investigation arising from events at the station on June 20th 2010, when the foreign national was in custody.

The Garda Siochána Ombudsman Commission carried out an investigation and recommended to the DPP a prosecution be initiated under Section 2 of the Non Fatal Offences Against the Person Act.

The DPP levied a more serious charge of assault of the prisoner and Garda McKenna was also charged with using unprofessional and discriminatory language towards him.

Garda McKenna was convicted on both those charges at the District Court in 2011 but was acquitted on appeal to the Circuit Court in 2013 after the DPP did not present any evidence as a result of the foreign national not attending at the court.

GSOC notified Garda McKenna in April 2013, some weeks later, it would not be taking the matter any further but he was also informed the Garda authorities were examining the question of further disciplinary action.

In June 2013, a Garda Supt was appointed to investigate disciplinary aspects of the events of June 20th 2010 and Garda McKenna was suspended pending that.

In May 2014, he was informed an inquiry had been established by the Commissioner into the three disciplinary charges.

In September 2014, he applied to the High Court to restrain that and, when the High Court refused, he appealed.

Giving the appeal court judgment on Monday, Mr Justice Gerard Hogan noted Article 8.2 of the Garda regulations of 2007 provides, where a member is acquitted “on the merits” of an offence, disciplinary proceedings are prohibited if they can show the disciplinary matter involves (1) inquiring into the “same issues” of which they were acquitted and (2) it would be unfair and oppressive to continue the inquiry in the circumstances.

Mr Justice Hogan disagreed with the High Court finding Garda McKenna’s acquittal in the Circuit Court was not an acquittal “on the merits” within the meaning of Article 8.2.

The court cannot look behind a DPP’s decision to offer no evidence and an ensuing acquittal, he said.

Garda McKenna’s acquittal was “on the merits” within the meaning of Article 8.2 and Garda McKenna can also demonstrate that two of the three disciplinary charges involve an investigation into the same facts as the criminal prosecution, he found.

However, Garda McKenna had not satisfied the Article 8.2 requirement in relation to the third charge of using unprofessional language towards the prisoner, he ruled. Nor had he shown the inquiry into the charge would be oppressive or unfair within the meaning of Article 8.2.

The judge rejected additional arguments, because GSOC had told Garda McKenna it would not be taking the matter any further, he had a legitimate expectation no further action would be taken.

That expectation applied to action “by GSOC” and there was nothing in the Garda Síochána Act 2005 expressly precluding the Garda authorities separately taking disciplinary action, he said.