Tuesday 16 July 2019

Garda fined two weeks' wages for sending lewd video to woman

Exclusive: DPP unable to prosecute because of a shortcoming in the law

Stock Picture
Stock Picture

Cathal McMahon

A garda who sent a video of himself performing a sex act 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.

Independent.ie has 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 member because of 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 currently confined to telephone communications and does not include online messages.

A source, familiar with the case, said that because this video was sent through a social media site it was not strictly an offence under current legislation.

This shortcoming was highlighted in 2014 by the Law Reform Commission and again in their 2016 report ‘Harmful communications and digital safety’.

Garda Siochana Ombudsman Commission
Garda Siochana Ombudsman Commission

The September 2016 document reads: “The Report recommends that the section 13 offence should be repealed and replaced with an offence of distributing a threatening, false, indecent or obscene message by any means of communication and with the intent to cause alarm, distress of harm or being reckless as to this.”

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

She said: “I'd known and trusted 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,” she said.

The video was sent to the woman on instant messaging site Viber.

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

The woman gave evidence and the board found that the garda, who is based in the east of the country, 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.

However 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 is unhappy with the decision and has written to Garda Commissioner Noirín O’Sullivan asking for the case to be reviewed.

However, in a letter sent by a senior officer to the woman in December 2015, she was told that the disciplinary action imposed on the garda “cannot be legally revisited or altered at this point.

The letter continues: “This matter has now been brought to a conclusion as far as the Garda Siochana, the Director of Public Prosecutions and the Commissioner of An Garda Siochana are concerned.”

The woman has contacted a TD who attempted to raise the matter in the Dáil. She said she would like to see the matter reopened.

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