THE High Court has reserved judgment in the case of a Limerick-based detective garda who is seeking to have his dismissal from the force quashed.
During judicial review proceedings this week, lawyers representing Detective Garda Brian Culbert argued that former garda commissioner Martin Callinan exercised “unlawful procedures” and “tried a DIY job” ahead of an internal garda appeal against his decision to dismiss the detective for serious breaches of garda discipline.
Paul Burns SC, representing Det Garda Culbert, said an internal garda investigation was launched in December 2011 after complaints “of a serious nature” were made by a member of the public against the detective, who was attached to Roxboro Road garda station at the time.
The allegations, the court heard, related to Det Garda Culbert’s handling of a confidential informant.
Mr Burns said a senior officer from outside of the Limerick division had concluded that while the detective had breached garda discipline he had been “controlled and manipulated by his source rather than the converse”.
Ms Justice Iseult O’Malley was told that following the initial investigation, a board of inquiry was subsequently established and that in September 2013 it formally recommended the dismissal of Det Garda Culbert after he admitted five “serious breaches” of garda discipline including disobeying orders, falsehood, improper practice and abuse of authority.
Details of the breaches were not outlined in open court due to their sensitive and confidential nature.
The court heard that while Det Garda Culbert had admitted the breaches of discipline, he believed the decision to dismiss him, albeit open to the commissioner, was unduly harsh given the oral and written evidence which was put forward in mitigation on his behalf.
It was submitted that he had been “guilty of naivety rather than malice” but that the board of inquiry had not indicated what weight, if any, was placed on the mitigation.
Det Garda Culbert was informed of the commissioner’s decision to dismiss him on October 4, 2013 but a stay was put on his dismissal after he lodged an appeal a week later.
During a two-day hearing at the Four Courts in Dublin this week, Ms Justice O’Malley was told that before the appeal could be heard, the Supreme Court delivered a judgement in an unrelated case involving another garda who had challenged his dismissal from the force.
In its judgment in that case, the court criticised aspects of the disciplinary procedures adopted by An Garda Siochana - particularly the fact that the board of inquiry (in that case) had not outlined the reasons for reaching the recommendation it did.
During this week’s proceedings, Ms Justice O’Malley was told that a number of weeks after the Supreme Court decision was handed down, a Chief Superintendent from the Internal Affairs section of An Garda Siochana wrote to the presiding officer of the board of inquiry which had adjudicated on Det Garda Culbert’s case and recommended his dismissal.
In the correspondence, she asked that the board reconvene so that it could outline the reasons for its decision ahead of the hearing of Det Garda Culbert’s appeal.
The reasons supporting the board of inquiry decision, the court heard, were to be forwarded to the board of appeal and Det Garda Culbert but not to the garda commissioner.
In his submissions, Mr Burns said this procedure “was outside of the statutory framework” and was unfair to his client and he accused the garda commissioner of “trying to do a DIY job” in an effort to rectify the matter.
“The respondent tried to cut the ground from under my client by devising an unregulated process,” he said adding that neither Det Garda Culbert nor his solicitor, Dan O’Gorman, were notified that the board was to reconvene until after it had met on February 10, 2014.
Last year the High Court halted the appeal process, pending the outcome of the Judicial Review proceedings.
Mr Burns said if the procedure being adopted is found to be lawful it effectively “sidelines” the garda commissioner whose decision is the subject of the appeal.
Conor Power SC, representing the garda commissioner, said all of the procedures adopted during the disciplinary process were lawful and fully in line with garda regulations.
He said a key point for the court to consider is that the breaches of discipline had been admitted by Det Garda Culbert and that the facts of what happened were not in dispute.
He submitted that many of the arguments put forward by Mr Burns during the hearing were matters for the appeal, which is still live.
”This case is premature because one doesn’t know what the board of appeal will do,” he said adding: “The appeal board will do what the appeal board will do”.
Mr Power rejected suggestions that the reconvening of the original board of inquiry – after it had made its recommendations to the commissioner – was unlawful.
He said the three member board had not changed its original decision in any way and that it had met for the specific purpose of outlining the reasons behind its decision in light of the Supreme Court judgement, which he submitted “was not unreasonable”.
In addition to his application to have the decision of the board of inquiry quashed, Det Garda Culbert is also seeking a prohibition order on any further disciplinary proceedings.
Following the conclusion of the hearing this Wednesday afternoon, Ms Justice O’Malley said she was reserving judgment in the case.