GSOC urges High Court to overturn costs order over ‘one-sided’ investigation

The Garda Síochána Ombudsman Commission (GSOC) wants the High Court to overturn a costs order made against it by a District Court Judge.

District Judge Kevin Kilrane had described GSOC’s investigation into a road accident involving a couple and an off-duty Garda as “one sided” and “disgraceful”.

The 2015 order required GSOC to pay the District Court costs of Maeve and Fintan O’Brien after the DPP withdrew a prosecution of charges against them arising from the 2011 accident.

Eileen O’Leary SC, for GSOC, argued in the High Court on Friday this was “contrary to public policy” and could inhibit GSOC carrying out its investigative functions.

The couple had been subject of charges of giving false and misleading information to a GSOC-designated officer.

The charges against the couple arose out of a road traffic incident at Loughanvally, Mullingar in June 2011 when a car driven by Ms O’Brien was involved in a collision with a car driven by off-duty Garda Mark Kenny, accompanied by Garda Ciaran McCormack.

Ms O’Leary said it was open to Judge Kilrane to criticise how GSOC carried out its investigative functions but an order for costs should not be made against an investigatory body carrying out a “public watchdog” function.

GSOC has never brought a prosecution in its own name and, when the proceedings were created, that was done by the DPP and GSOC had “no input into that at all”, she said, but agreed with the court that was not set out in a sworn statement.

John Paul Shortt SC, for the couple, said the circumstances, including Judge Kilrane’s description of the GSOC investigation into the accident as “one of the most one-sided I have ever seen”, required the costs order should stand.

GSOC was essentially saying it should be immune from suit but any such immunity could lead to “grave injustice”.

In this case, two citizens who went “bona fide” to make a complaint were prosecuted and the case against them “fell apart”, not because of the District Court’s refusal to admit an engineering report compiled by a retired Garda two years after the collision, but due to “lies” told in court, he said.

As “a guardian of public policy”, Judge Kilrane did “the right thing”, Mr Shortt argued.

Having heard arguments from both sides on Friday, Ms Justice O’Regan reserved judgment.

The appeal concerns a costs order made at Sligo District Court in 2015 in favour of the couple, from Carne, Castletown-Geoghegan, Mullingar, Co Westmeath.

In his order directing GSOC to pay the costs in October 2015, Judge Kilrane said GSOC had “ignored” vital evidence and the way it carried out its function was “quite disgraceful”.

The couple maintained Ms O’Brien’s car was stationary when struck by the car driven by Garda Kenny while the Garda and his colleague said their vehicle had been stopped when struck.

The prosecution applied for a nolle prosequi after Judge Kilrane said he would not hear evidence from an expert witness for GSOC, who visited the scene over two years after the crash.

A GSOC investigator previously confirmed he had not received contemporaneous Garda notes or a sketch map from officers who had investigated the crash.

The court heard the couple had been celebrating their wedding anniversary on the night of the crash when they had a row and Mr O’Brien “stormed off”.

In a statement, Ms O’Brien said she followed her husband in the car and had just stopped to pick him up when the collision occurred. Her legs were trapped for some time in the car and she was later taken by ambulance to Mullingar Hospital.

Mr O’Brien said the Garda car was travelling on the wrong side of the road.

The court heard Garda evidence was Ms O’Brien “fled” Mullingar hospital to avoid giving a breath sample to gardaí. Ms O’Brien was acquitted of failing to give a breath test.