Order to suspend garda contested in court

A Co Donegal garda has claimed that her suspension in the immediate aftermath of the declaration of a miscarriage of justice in the case of nightclub owner Frank Shortt was a "PR exercise" by the Garda authorities.

Garda Martina Fowley, who was referred to in the Shortt judgment of July 31st last, was suspended at 5 p.m. on August 1st for a period of three months to today (November 1st). She said that she was informed of her suspension by telephone at about 8.40 p.m. on August 1st, just before it was broadcast on the RTÉ TV news at 9 p.m.

As she had been on sick leave with full pay for two years up to the time she was suspended, the suspension served no other purpose than that of discrediting her, Ms Fowley claims. She further alleges breaches of fair procedure and natural and constitutional justice in that she was never told of any proposal to suspend her, was not given reasons for the suspension until some two weeks after it was put into effect, and was never given an opportunity to make representations.

She also alleges that Garda regulations provide that only the Garda Commissioner may suspend a garda for a period of more than 72 hours. She claims that she was suspended by Assistant Commissioner Michael Murphy for a period of three months and that her suspension is therefore unlawful.

Judicial review proceedings were taken by Ms Fowley, of Beechwood Park, Letterkenny, challenging her suspension. The hearing opened yesterday before Mr Justice Ó Caoimh and it continues today.

The action arises after the Court of Criminal Appeal on July 31st last certified a miscarriage of justice in the 1995 conviction of Mr Shortt, owner of the Point Inn nightclub in Inishowen, for knowingly allowing the club to be used for the sale of drugs. The conviction was quashed in December 2000 with no opposition from the DPP, but the DPP had resisted the granting of a certificate.

Opening Garda Fowley's challenge to her suspension, Mr Garret Cooney SC said that she was assigned in mid-1992 by Insp Kevin Lennon (now a superintendent) to undercover work at Mr Shortt's nightclub. A prosecution was ultimately taken against Mr Shortt.

In its judgment certifying a miscarriage of justice in Mr Shortt's case, the CCA made findings against Supt Lennon and Det Garda Noel McMahon, who were both involved in the Point Inn investigation and the susbsequent prosecution of Mr Shortt, of conduct inconsistent with their duties of integrity and fairness as gardaí. The judgment made references to Garda Fowley, but there were no "findings" against her, counsel said.

On the evening of August 1st, Garda Fowley received a call on her mobile phone from Supt James Gallagher, asking her to contact him. She did so and the superintendent said that he wished to see her. She had said she was out to dinner with her brother, who was home from the US, and would not be home until about 9 or 9.15 p.m. and would meet him then.

Supt Gallagher rang her again at about 8.45 p.m. to tell her that he was authorised to serve a notice of suspension on her. He said that he wished to tell her then because he was anxious that it might be broadcast on the 9 p.m. news.

It was clear that the decision to suspend Ms Fowley had been taken sometime on the evening of August 1st and only the respondents, Garda Commissioner Pat Byrne and Assistant Commissioner Michael Murphy, could have been aware of the making of the decision.

This was a "PR exercise" in response to the massive media coverage given to the judgment of the CCA, counsel said.

The respondents deny any breaches of fair procedure or natural and constitutional justice and say that the decision to suspend Ms Fowley was made after a detailed consideration of the CCA judgment.