A garda has brought a High Court challenge to a decision of the Garda Commissioner to reactivate an inquiry into the garda's conduct after the DPP decided not to proceed with a prosecution against him on a charge of possessing child pornography.
Feichin McDonagh SC, for Garda Darach A Kennedy (41), Dunshaughlin Garda station, yesterday secured leave from Mr Justice John Quirke to bring proceedings seeking orders prohibiting the disciplinary inquiry.
Pending the outcome of those judicial review proceedings, the judge granted an injunction restraining the commissioner from proceeding with the inquiry.
In an affidavit, Garda Kennedy said he had never had any breaches of discipline alleged or recorded against him before this proposed inquiry. He is alleging inordinate and inexcusable delay by the Garda authorities in processing the inquiry and breaches of his rights to fair procedures and natural and constitutional justice.
Garda Kennedy said he was notified on September 13th last that a sworn inquiry was to be held next week to investigate alleged discreditable conduct on his part between 2000 and 2002.
He said the Garda authorities had been aware of the appearance of alleged breaches of discipline since November 2002 or at the latest December 2002, but had delayed for seven months before appointing an investigating officer. It was not until July 15th, 2003, that an investigating officer was appointed.
Garda Kennedy said he was informed that all inquiries by that officer and his team, with the exception of his own interview, were completed by January 14th, 2004. On that date, a chief superintendent had directed the disciplinary inquiry should not proceed any further pending the outcome of criminal proceedings.
Garda Kennedy said he was summonsed to appear before Dublin District Court on an allegation of an offence under the Child Trafficking and Pornography Act 1998. On February 4th, 2005, the DPP entered a nolle prosequi.
Three months later, on May 16th, 2005, Garda Kennedy said he had received a phone call that the internal Garda inquiry had been "reopened". The inquiry's investigating officer gave Garda Kennedy an opportunity to reply to the alleged breaches of discipline before completing his investigation. He had told the officer he was out on sick leave for stress and asked him to deal with his solicitor. The officer had replied there was no provision in the Garda code to do so.
There was then an exchange of correspondence between his solicitor and the Garda authorities. He was notified last September 13th that a sworn inquiry would be held on October 25th.
Garda Kennedy said that in reactivating this inquiry, he believed the Garda Commissioner had acted in breach of statutory duty by the manner in which the investigation was processed and had breached his legitimate expectation that serious allegations of misconduct alleged against him would be dealt with expeditiously.
