DREW HARRIS HAS lost an appeal in court over his move to dismiss a garda who admitted to engaging in a sexual act with a “vulnerable” witness in a garda station.
Yesterday’s ruling found that Garda Raymond Hegarty had already been the subject of a disciplinary process before Harris took the decision to dismiss him.
The disciplinary process came in response to a complaint made by a member of the public that accused Hegarty of engaging in a sexual act with a “vulnerable” witness while on duty on 14 March 2017, breaching the 2007 (Discipline) Regulations.
The woman was at the station to give a statement in Lismore Garda Station, Waterford, relating to the arrest of her sister.
The Board of Inquiry, which was tasked with investigating the incident, also found that Hegarty neglected his duty as a garda by failing to record any statement from the woman.
They recommended that Hegarty be forced to retire or resign over the first breach, and take a two-week pay reduction for the second breach. The Commissioner accepted the recommendations that Hegarty could resign as an alternative to dismissal.
Hegarty appealed the decision and an independent board ruled that a less serious sanction, such as a four-week pay reduction, would be sufficient, letting the garda keep his job.
The Appeal Board took into account Hegarty’s “previous unblemished record”, among other mitigating factors. It also noted that he had “suffered reputational damage within his community and at work” and that his personal life had been “severely affected”.
Harris was of the opinion that Hegarty keeping his job after his conduct “would undermine public confidence in the Garda Síochána”.
The Court of Appeal’s ruling said it was asserted that the garda breached the rights of a vulnerable female “by interfering with her bodily integrity by engaging in inappropriate sexual activity with her in a Garda Station, being a place of work, safety and refuge”.
In a letter informing him of his dismissal, the Commissioner told Hegarty that he was in a position of authority in the station as a garda and was aware that the female was vulnerable.
He wrote: “The information now in my knowledge is such that I believe it seriously undermines your professionalism, honesty and integrity and compromises your ability to serve as a member of An Garda Síochána.”
Hegarty took a judicial review case against the decision to suspend him, claiming that the commissioner had acted “irrationally” and was in abuse of process and in breach of natural and constitutional justice, as the suspensions “effectively flew in the face” of the appeal board’s determination.
In the ruling, the High Court stated that the garda had “already been pursued once for misconduct and has had a penalty imposed for his conduct”.
The Garda Commissioner appealed the ruling to the Court of Appeal, arguing that the judge had “erred in law and/or fact” in a number of regards, including their finding that the Commissioner’s invocation of Section 14 of the Garda Síochána Act was “in breach of the applicant’s right to natural and constitutional justice”.
Harris also argued that the judicial review proceedings taken by the garda were “premature” as the commissioner had only proceeded through the first stage of the process, in that he wrote to the garda to tell him his opinion on how the breaches should be sanctioned and gave him an opportunity to respond.
The Commissioner’s argument was not accepted by the Court of Appeal judge.
“The applicant (Hegarty) cannot be said to have jumped the gun,” Justice Flaherty said.
“The applicant is now in peril of a second (and very grave) sanction for the same conduct.
“I have no hesitation in upholding the Judge and thus rejecting the Commissioner’s submission that the judicial review proceedings are premature.”
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