News Courts

Tuesday 23 September 2014

Whistleblower John Wilson loses ‘off duty’ court claim

Published 11/04/2014 | 13:59

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Whistleblower retired Garda John Wilson
Whistleblower retired Garda John Wilson

ONE of the whistleblowers in the Garda penalty points controversy has lost his High Court claim that he should not have been subject to disciplinary proceedings arising from his attendance, while off-duty, at district court proceedings in Cavan.

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In her judgment, Ms Justice O'Malley said the court had been told events in this case did not relate to John Wilson's departure from the Garda.

Mr Wilson, with an address in Cavan town, had challenged findings of May 2012 that he acted in breach of Garda discipline in refusing to say why he attended a January 2012 special sitting of Virgina District Court in Cavan courthouse. That case involved a long-running dispute between neighbours, dating from 2005, in which there were some 90 complaints to gardai and "numerous" investigations and files sent to the DPP, Ms Justice O'Malley noted.

Garda Chief Superintendent James Sheridan had said he was very concerned Mr Wilson's presence, while off-duty, could give rise to an apprehension of lack of impartiality on the part of the force with regard to that case.

Mr Wilson, who retired from the Garda last year having joined in 1982, challenged findings that he, in neglect of duty, failed to promptly reply to the Divisional Officer of the Cavan/Monaghan division concerning correspondence dated January 31st 2012 and March 6th 2012. Sanctions of "advice" and a "warning" were imposed on foot of those, the lowest and third lowest level of sanctions under the disciplinary regulations.

The January 31st 2012 letter asked him to explain why he was at Cavan courthouse on January 12th 2012 in the presence of Walter and Genevieve Smith. On March 6th 2012, he was directed to comply with the January 31st direction.

The Smiths were among four people from both sides of the neighbours' dispute who were charged with harassment. The District Judge dismissed all charges, with voluntary undertakings given by all the accused and the spouse of one of them, Ms Justice O'Malley noted.

In her judgment dismissing Mr Wilson's challenge, Ms Justice O'Malley said the attendance of a serving Garda, even if off duty, in a public court at the hearing of a prosecution is not something that is, on the face of it, private. The administration of justice in criminal cases is, for the most part, a public matter, she added.

In that context, it was not unlawful to ask Garda Wilson the question: "What were you doing there?" and the Garda authorities had a right to an answer, the extent of which would vary according to circumstances. That did not require a specific provision under the Garda Siochana Act 2007 or Garda Siochana Disciplinary Regulations 2007 as no statutory scheme or contract covers every incident of the employment relationship.

The context here was of "a hierarchical, discipline-based police force" and a lawful demand that a member account for himself has to be addressed, she said. 

It did not necessarily follow the information requested must in all cases be given as the conduct in question may fall within a Garda's private life. In that situation, the member must provide sufficient information so their superiors can decide whether or not to accept that privacy applies.

Garda Wilson never actually said, until the hearing before the deciding officer, that he considered his activities on the day to be private and never gave any intimation there might be grounds for their being private, other than his being off duty, she said.

She did not know why Garda Wilson was in the District Court, the judge said. As that case was being heard in the Garda divisional area where he worked, and being heard by a judge whom he previously probably would have given evidence before, that would be capable of impinging on his role as a garda and the public perception of the force as a whole.

That was particularly so in the context of a long running neighbours dispute which had given rise to extensive Garda involvement and allegations of bias on the part of other Garda officers, she added.

While attendance at a trial to support a party did not necessarily mean a serving Garda would be in breach of discipline, it was something likely, depending on the circumstances, to call for an explanation, she added. The Chief Supt was entitled to ask why Garda Wilson was present and, having directed him to explain, was entitled to an adequate response.

Instead, Garda Wilson's first response was to ask what was being "insinuated" about him by a Garda Inspector and that was suggestive of some degree of bad faith by the Inspector, she said. That suggestion was not elaborated upon and instead Garda Wilson began to question the authority of his superiors and "demand chapter and verse" from regulations and correspondence.

The respondents were entitled to consider his failure to deal with the matter more promptly and appropriately amounted to neglect of duty, she concluded.

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