Saturday 23 February 2019

Shane Phelan: 'Court quashes probe into garda criticised by tribunal'

 

Case halted: Keith Harrison and Marisa Simms at the Disclosures Tribunal. Photo: Collins
Case halted: Keith Harrison and Marisa Simms at the Disclosures Tribunal. Photo: Collins
Shane Phelan

Shane Phelan

A disciplinary investigation into the conduct of a garda criticised by the Disclosures Tribunal has been halted following a legal challenge.

Mr Justice Seamus Noonan made an order quashing a decision by the Garda Commissioner to appoint a superintendent to investigate alleged breaches of discipline by Gda Keith Harrison.

The order was sought by the garda's counsel, Mark Harty SC, in the High Court yesterday and was not opposed by the commissioner's legal representatives.

Gda Harrison's legal team was also awarded its costs.

The case highlights the limitations of tribunals, in particular the difficulties involved in using or relying upon their findings in other settings.

Tribunals are predominantly fact-finding exercises and statements or admissions made at hearings cannot be used in evidence against a person in criminal proceedings.

On occasion findings can give rise to separate investigations, which in turn can lead to criminal or civil proceedings.But this is not without its difficulties, as demonstrated by the Harrison case where the decision to rely on tribunal findings and evidence as a basis for starting a disciplinary investigation now appears to have been a costly misstep.

The disciplinary investigation was ordered by then-acting Garda commissioner Dónall Ó Cualáin last July on the back of a tribunal report published in November 2017.

The report examined allegations made by Gda Harrison and his partner Marisa Simms that gardaí coerced her to make a false complaint against him, and directed Tusla to visit their family home.

Mr Justice Peter Charleton dismissed the allegations as being "entirely without any validity" and exonerated gardaí and Tusla officials.

Gda Harrison has rejected the tribunal's findings and is challenging them in separate High Court proceedings.

A notice given to him last July set out four reasons for the disciplinary inquiry. All were linked to the tribunal.

The first was that he was the subject of adverse commentary and that such commentary "would bring An Garda Síochána into disrepute".

The second was that he made serious claims against public officials, including gardaí and Tusla staff, and that these allegations were found by the tribunal to be false.

A third allegation was that the motivation of Gda Harrison in making allegations was "malicious and vexatious" and that he was of the knowledge and belief that these would bring the force into disrepute.

It was also alleged his conduct in a number of incidents outlined in evidence was "unbecoming to a member" of the force. Within days of the notice being issued, lawyers for Gda Harrison wrote to the commissioner to protest.

They argued the tribunal findings were not legally binding, could not affect the legal rights of individuals, and could not be used as a basis for a disciplinary investigation.

It was also argued An Garda Síochána could not institute disciplinary proceedings over matters outlined in protected disclosures. Although the investigation was put on hold, the force would not agree to a request to abandon it.

Judicial review proceedings were issued in October and the matter came before the court four times between then and December. Mr Harty said the court indicated at that point the issues should either be resolved or defence papers filed by the commissioner.

No defence papers were ever filed.

Irish Independent

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