Wednesday 20 September 2017

Garda wins misconduct dismissal appeal

KELLY; (GARDA JOHN); v An Garda Siochana Commissioner, Judgment, Supreme Court, Dublin, ( 5/11/13).***See Hi Ct story.
Pic. shows: Garda John Kelly leaving the Supreme Court in Dublin yesterday (Tues.) after the judgement hearing,
(Pic; CourtPix.)
KELLY; (GARDA JOHN); v An Garda Siochana Commissioner, Judgment, Supreme Court, Dublin, ( 5/11/13).***See Hi Ct story. Pic. shows: Garda John Kelly leaving the Supreme Court in Dublin yesterday (Tues.) after the judgement hearing, (Pic; CourtPix.)

Mary Carolan

A GARDA has won a Supreme Court appeal over his dismissal for misconduct following an inquiry which arose out of an after-hours inspection of a Leitrim pub.

Garda John Kelly, stationed at Drumshanbo, had served 27 years in the force before his dismissal on August 2011 arising from the misconduct inquiry over an allegedly false statement he made after he conducted an after-hours inspection of Monica's Bar in Drumshambo which was alleged to be a favoured local for some gardai.

A three judge Supreme Court granted his appeal against the High Court's rejection of his challenge to that dismissal and said a new internal garda appeals hearing will have to take place.

One judge commented that Drumshanbo may seem "a tidy, quiet and even sleepy place" but "certainly was not such" around 3.30am Sunday, September 20, 2009, when Garda Kelly claimed he found several people drinking in "Monica's" pub.

It sparked off events ultimately leading to his dismissal, Mr Justice Donal O'Donnell said when the court overturned the dismissal.

Monica McGourty, wife of Paddy McGourty, the proprietor of Monica's, became so incensed after Garda Kelly spoke to the couple, that she walked around the town and sat outside another bar apparently to make the point other pubs were still operating at that hour, Mr Justice O'Donnell said.

The Supreme Court ruled a Garda Board of Inquiry failed to give reasons for recommending Garda Kelly's dismissal and directed the board must give him those reasons before his fresh appeal against the recommended dismissal, to be conducted in line with the court's findings.

Neither the Board of Inquiry nor a Garda Appeals Board had explained their respective decisions in favour of dismissal "in even the most rudimentary way", Mr Justice O'Donnell said, in a judgment with which Chief Justice Susan Denham and Mr Justcie Frank Clarke agreed.

The "remarkable" fact was Garda Kelly was dismissed after the Appeals Board applied some unknown test to facts which remain unclear, the judge said.  Not only did Garda Kelly not know what view the Board of Inquiry took of the facts, he did not know what the Appeal Board thought the inquiry had decided concerning the facts.

Garda Kelly also does not know why the Appeal Board concluded in March

2012 his appeal was so lacking in substance it could be dismissed without any hearing, the judge said.

The judge said the case arose out of events on September 20, 2009 when Garda Kelly approached a taxi , waiting for customers inside at around 3.30am.

This was two weeks after Paddy McGourty was convicted, following a prosecution initiated by Garda Kelly, in the District Court of having people on the premises after licensing hours.

That same day, Garda Kelly entered details on the Garda PULSE system indicating he conducted an after hours inspection of Monica's where he found Mr McGourty, his wife and several customers. He made a formal statement a week later, stating he found seven people inside and two others walked past him as he went in.

In November 2009, his statement was given to local Sergeant Fahy with a view to a further prosecution of Mr McGourty. Correspondence between the two men made clear their relationship was not good, the judge said.

In that correspondence, Garda Kelly quered why Sgt Fahy was seeking clarifications of matters, referred to the Sergeant's "close scrutiny" of the previous prosecution of Mr McGourty and suggested Monica's was a favoured local for some gardai.

Sgt Fahy wrote to a Garda inspector complaining Garda Kelly had not answered certain questions and recommended no prosecution.

Garda Kelly made further statements, including one in February naming certain persons as being present in Monica's. One man who denied being there alleged Garda Kelly had been harassing him to name customers who were there.

In April 2010,  a Garda inspector informed the Chief Superintendent in Sligo he intended to prosecute Mr McGourty and recommended the events of September 20 be fully investigated.

During that investigation, some people who admitted being in Monica's denied Garda Kelly entered the premises while a taxi driver said he had seen Garda Kelly enter the front door. An examination of Garda Kelly's notebook showed information concerning that night was written in two different pens.

A board of inquiry later upheld six allegations of misconduct against Garda Kelly, including falsehood in statements provided by him.

Garda Kelly's appeal against that decision was dismissed without a hearing after an Appeal Board described the grounds of appeal as "without substance".

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