Legal action risk in breath test probes

Frontline gardaí will consider legal options if the Garda Commissioner pursues disciplinary proceedings against members for falsifying breath tests.

The Garda Representative Association (GRA) is expected to consider taking judicial review proceedings if they believe the disciplinary mechanism breaches legal requirements of fair procedure and due process.

The association is expected to meet acting commissioner Dónall Ó Cualáin in the coming weeks and is likely to raise the disciplinary matter then.

The Irish Examiner understands that Garda HQ believes it will take some time to determine a course of action, given what it feels is an “expectation” from the Government and the Policing Authority that disciplinary proceedings will be taken.

Authority chairwoman Josephine Feehily made it clear that if there was prima facia evidence of members falsifying breath tests that the Commissioner should launch disciplinary or even criminal proceedings.

She said the authority expects the Commissioner to tell their public meeting on November 23 what action he is taking.

The GRA national executive will discuss the matter next Thursday.

Sources have told the Irish Examiner that the association remains determined to fight any attempts at discipline and that it will discuss legal options.

The exact options will only become clear once the Commissioner decides the exact mechanism and process for disciplinary proceedings.

“The thing is, to find all prima facia evidence you have to carry out a full trawl,” said one source. “You just can’t take a sample and cherry pick who’s for discipline and who is not.”

A second source said: “You either have a thorough and fair investigation or not.”

The GRA will also raise the report’s finding that all ranks shared the blame.

“So if every rank shares part of the responsibility then how can the higher ranks dish out the discipline,” said one source.

Another source said: “There would have to be an independent process, an outside body like GSOC.”

The report identified a “perfect storm” of factors that led to the falsification: Unrealistic targets, expectations and pressure by management; a flawed and complicated recording system; lack of supervision and training, and “unethical behaviour” by gardaí.

The report noted that assistant commissioner Michael O’Sullivan, who conducted the internal Garda report, has indicated that it would take 21 years to listen to all of the 500,000 breath test calls made by gardaí to the central GISC centre.

The report said: “Our view is that such an audit would be unnecessary and would be a waste of resources, unless there is prima facie evidence of either a criminal offence or a discipline breach having been committed.”

It said the core focus should be on rectifying the problems.

Asked how would prima facia evidence be gathered without a trawl of the calls, Ms Feehily concedes it would be “very difficult”.

However, she said the commissioner also has access to both O’Sullivan’s report and his research.



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