An Assistant Garda Commissioner has initiated a High Court challenge aimed at overturning his “bizarre” and “unlawful” suspension from duty pending the outcome of an investigation by the Garda Síochána Ombudsman Commission (Gsoc).
Paul McGarry SC said his client John Fintan Fanning was suspended on January 3rd in “flagrant breach of fair procedures” and Garda rules. He is also concerned about the manner in which news of his suspension was “leaked” to the media.
The case, against the Garda Commissioner, arose from a “very unusual and very serious set of circumstances”, counsel said.
The Gsoc investigation - into a protected disclosure made by a rank and file garda - concerned two “incredibly straightforward” issues of fact and the issue was how they could ever have lead to any decision to suspend, counsel said.
Mr Fanning did not accept that it was a “holding suspension” and his retirement is imminent, Mr McGarry said, adding that the suspension was “calculated to cause him damage”.
Information in the media about his suspension, and the timing of such reports, meant the information could only have come from Garda headquarters, counsel said.
He added that some media reports had used the word “corruption” when that is nowhere to be found in any of the investigation documents and is “false”.
In a sworn statement, Mr Fanning said he read a news report on The Irish Times website at 4am on January 3rd and was shocked at that report which said a senior Garda officer was under investigation over alleged serious misconduct.
Imminent
He was concerned that a suspension was imminent and was informed shortly after 9.30am that he had been suspended from duty by the commissioner at 8.25am.
In his proceedings, Mr Fanning wants orders lifting his suspension pending the outcome of his challenge, restraining the commissioner communicating “false” information concerning him and directing the commissioner to co-operate with the Gsoc investigation. He is also claiming damages.
When the matter came ex parte - one side only represented - before Ms Justice Leonie Reynolds on Friday, the judge said the best approach was to grant permission to serve short notice of the proceedings on the commissioner and return the matter to Tuesday.
Mr Fanning is also to write to the defendant outlining his precise concerns about the manner in which the suspension was communicated.
Mr Fanning, who is due to retire in August after almost 39 years in the force, has held several high-profile posts including chief superintendent of the Dublin South Central Division and regional commander for the Northern and Eastern Regions. He said his career “speaks for itself” and he has an “unblemished disciplinary record”.
He became aware on December 3rd last that Gsoc had received a protected disclosure made by a rank and file Garda and he was asked by Gsoc to provide certain information within 30 days.
Complaint
He provided that by December 20th and that same day Gsoc served a notice stating it had received a complaint under the Protected Disclosures Act and had commenced a public interest investigation.
The notice informed him that the complainant alleged that, on a date in November 2017, he was contacted directly by another officer and told he was no longer on a specialist firearms course following an intervention by Mr Fanning.
The second allegation concerned an incident in December 2017 involving an assault and the Garda claimed he was the victim in the incident. The complainant claimed he was initially placed on restricted non-confrontational duties and later served with the force’s disciplinary documentation.
He claimed he was suspended from duty, following a recommendation by Mr Fanning, and treated as a suspect.
Mr Fanning said it was not unusual for Gsoc to receive complaints and he was not concerned as the matter related to two separate internal management matters that were “relatively minor and straightforward”.
He was “somewhat taken aback” at the narrative description of the two complaints and the classification by Gsoc of the offence under investigation was misconduct in public office, which he believed has never been prosecuted here.
Selection process
He had no role in the selection process for the firearms course but had reported concerns by various officers that a garda who had not passed the course selection process was intending to attend it.
He said the complainant’s second allegation referred to an investigation into an allegation the complainant Garda had been involved in an assault on a female at an hotel. His own involvement was in the usual way of managing the file and forwarding it to his superiors, including his recommendation the Garda be suspended. He had no concerns whatsoever about the probity of his role.
Having asked several questions on January 3rd of Assistant Comissioner David Sheahan, who had recommended his suspension, Mr Fanning said it was “apparent no steps had been taken by Garda HQ to verify the allegations before the suspension was ordered”.
The suspension and associated media reports had caused “huge damage” to him and his solicitor wrote to the commissioner on January 4th asking that the suspension be removed.
The commissioner replied on January 9th stating the suspension was predicated on a range of factors, including this was a criminal investigation in respect of a serious allegation, namely misconduct in public office, and there was no alternative to suspension pending conclusion of the Gsoc investigation.
