Wednesday 13 December 2017

Gap in the law means garda not prosecuted over lewd video

Garda Síochana Ombudsman Commission (GSOC) headquarters in Dublin
Garda Síochana Ombudsman Commission (GSOC) headquarters in Dublin
Cathal McMahon

Cathal McMahon

A garda who sent a lewd video to a woman "three days after he talked her out of jumping off a bridge" was not prosecuted because of a shortcoming in the law.

The Irish Independent learned that the officer was fined by the Garda Commissioner after the Garda Síochana Ombudsman Commission (GSOC) found he breached discipline.

However, the Director of Public Prosecutions (DPP) decided that criminal charges could not be brought against the garda amid a gap in the law.

Under section 13 of the Post Office (Amendment) Act 1951, the offence of sending any message by telephone which is grossly offensive or of an indecent, obscene or menacing character is confined to telephone communications and does not include online messages.

A source said that because this video was sent through social media it was not strictly an offence under current legislation. This shortcoming was highlighted in 2014 by the Law Reform Commission and again in a 2016 report 'Harmful communications and digital safety'.

The woman at the centre of this case explained that she first got in touch with the garda on a dating website - but they both agreed that a relationship would not work because they lived some distance apart.

She said: "I'd known and trusted [him] for a very long time and in September 2013 he talked me out of jumping off a bridge. Then three days later he sent me a video of himself pleasuring himself. I was all over the place at the time, my mother was dying from cancer and I wasn't coping. Without any invitation, he randomly just sent it to me."

The woman explained that she went to her local garda station after the incident in September 2013 and a statement was taken. Later she made a report to GSOC and the matter went to a board of enquiry.

The woman gave evidence and the board found that the garda was in the wrong. The DPP was not, however, able to prosecute the garda so the matter was referred to the Garda Commissioner who imposed a fine. The matter was finalised in 2015.

Sources have claimed that the officer, who has an otherwise unblemished record, was docked two weeks' wages. Details of fines imposed on members are not released publicly. A garda spokesman added: "We do not comment on internal garda investigations."

The victim said she has written to Garda Commissioner Noirín O'Sullivan asking for the case to be reviewed. However, a letter sent to the woman in December 2015 says the disciplinary action "cannot be legally revisited or altered at this point". The letter adds that the matter has now been brought to a conclusion as far as the Garda Siochana, DPP and the Commissioner are concerned.

Irish Independent

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