Garda boss Harris risks walking into a seamy mess over civilian prosecution case

Garda Commissioner Drew Harris was questioned on the Margiotta case that collapsed at trial earlier this year. His answers to the PAC left a lot to be desired, writes Michael Clifford

Garda boss Harris risks walking into a seamy mess over civilian prosecution case

Garda Commissioner Drew Harris was questioned on the Margiotta case that collapsed at trial earlier this year. His answers to the PAC left a lot to be desired, writes Michael Clifford

Drew Harris is in danger of being dragged into a seamy mess, if he’s not careful.

Last week, at the Public Accounts Committee, the Garda Commissioner answered questions about a case that simply will not go away.

His answers left a lot to be desired.

The details of the Margiotta case are laid out in the timeline on this page and have been reported on in the Irish Examiner over the last month.

The case involves the prosecution of a civilian garda employee and her GP brother; the possible withholding of vital evidence in a criminal case; an allegation that the criminal justice system was used to stifle a complaint of bullying against a garda member; and, in its most benign interpretation, a Garda Commissioner not in full command of the facts of what transpired in his force.

The central feature of the garda investigation was that Dr Tony Margiotta had used the stamp of other GPs on sick notes he had signed for his sister, Lynn, a civilian employed by An Garda Síochána.

Dr Margiotta had worked between two practices in 2014, in one of which he was a locum.

Early on in the investigation, the gardaí retained an expert in the area of GP stamps. Professor Colin Bradley, of University College Cork, prepared a report and completed it on February 8, 2015.

The Irish Examiner has had sight of the Bradley report.

The professor pointed out that there was no actual requirement for doctors to use their own stamp.

“It can be the case that whatever stamp is most readily available is the one used,” he wrote.

In the case of locums, it is more likely than not that he or she would use the stamp of another doctor.

He made comparisons with a GP’s prescription pad.

“Essentially, the principles regarding use of both of these are similar. One should, ideally, use your own, but when using the prescription pad or stamp of another doctor, one needs to exercise due care with regard to its safe-keeping and appropriate use.”

One could well conclude that the report dealt a fatal blow to the garda investigation.

Yet the gardaí ploughed on. Later that year, they interviewed Dr Margiotta four times and arrested his sister for a second time.

However, the Bradley report was not included in the book of evidence for the trial. Neither was Prof Bradley listed as a witness.

Was the truth too inconvenient to the case being made against the Margiottas?

A question arises as to whether the DPP had sight of the report. The Margiottas were charged on June 10, 2017.

Some weeks later, the DPP indicated that its office would accept a guilty plea in the district court or else proceed to trial in the Circuit Criminal Court.

At that point, the Margiottas’ legal team was not furnished with the Bradley report. (They only received the report in February 2019, four years after it was completed.)

The DPP is obliged to discover all relevant documents during this pre-trial phase.

So the siblings were being invited to plead guilty to a crime, despite the gardaí being aware of a report that threw grave doubt on whether a crime was committed at all.

“That report showed that I did nothing wrong,” says Dr Margiotta. “When did they get it? Did they have it before they questioned me?

"Did the DPP have sight of it when we were being asked to plead guilty in the district court? And why wasn’t it released to us until the 11th hour?”

If the DPP did not have sight of the Bradley report, it might explain why a decision was taken to press charges. The DPP does not comment on individual cases.

Then, we have the Garda Commissioner’s response to what is beginning to have the whiff of a scandal.

Last Thursday, he was before the public accounts committee. Sinn Féin’s David Cullinane asked him about the case.

Drew Harris defended the investigation and pointed out that “it went through an investigate process and an external examination by the prosecution authority (DPP), which found the facts to be sufficient to state there was a criminal case to be answered”.

But was the DPP fully aware of all the facts? And, if so, why were these facts not presented to the defence at the appropriate time? If the DPP was not aware of the Bradley report, why did the gardaí not inform the office of its existence?

Cullinane asked the commissioner about the allegation that Lynn Margiotta made a bullying complaint weeks before she was arrested in 2014.

Lynn Margiotta
Lynn Margiotta

Margiotta and her brother believe the whole criminal investigation was motivated by her complaint of bullying.

“There is no record of a complaint of bullying or harassment having been made,” Harris told the deputy. “None can be found.”

While there is absolutely no reason to believe that the commissioner was trying to mislead an Oireachtas committee, his answer may have conveyed the impression that there was no bullying complaint.

The court report last March referenced the bullying complaint made three weeks before Margiotta was arrested.

If the commissioner was minded, he could simply ask the members of his force who attended the trial as to what exactly transpired.

Separately, inquiries by the Irish Examiner have established that Margiotta did make an initial verbal complaint of bullying three weeks before her arrest.

The standard procedure in such instances is to attempt mediation before formalising the complaint. Arrangements were made between Margiotta’s union and garda management, for a meeting.

Holiday arrangements for some of the personnel delayed this meeting. Then, before the meeting could take place, Margiotta was arrested.

So the commissioner is correct when he states that there is no written record of the complaint. But that does not tell the full story and could be, inadvertently, misleading.

A query to the garda press office, on Monday, about the commissioner’s comments, had received no reply by last night.

Harris also appeared to give the committee the impression that GSOC was investigating this whole matter.

Cullinane asked whether the commissioner was of a mind to “personally examine the elements of the case that are in the public domain”.

David Cullinane
David Cullinane

Harris said:

That is also the subject of a public complaint to GSOC. The material we are putting together is for its information and I have to wait for it to make its recommendations.

According to a spokesperson, GSOC is currently not investigating any aspect of the case that it understands was being referred to at the PAC.

In response to a question on this matter, the garda press office said the commissioner was referring to a complaint from 2016.

In fact, the 2016 complaint, a copy of which has been seen by the Irish Examiner, referred to leaks to the media about Margiotta’s arrest.

This was completed, without resolution, by GSOC in November 2017. Yet, the commissioner’s answer could give the impression that GSOC was now investigating the whole Margiotta case, which would preclude him from doing anything further.

Collectively, Harris’s responses at the PAC could be interpreted as conveying the old line, ‘Nothing to see here, folks, now please move along.’

There is a lot to see here about possible abuse of power that requires independent scrutiny.

Lynn Margiotta’s solicitor, Yvonne Bambury, told the Irish Examiner last month that a full inquiry was warranted.

“It is disturbing that somebody can be investigated by colleagues and treated in a criminal fashion for something that was a HR issue.”

Harris should proceed with caution. This one won’t go away, while a whole slew of disturbing questions remain unanswered.

2014-2019: Sick notes case timeline

January – July 2014

Lynn Margiotta is absent from work on a number of occasions following the death of her mother.

She had worked as a civilian employee in An Garda Síochána in Store St station in Dublin since 1999.

Gardaí accept that she was suffering from a medical condition during this period.

July 24, 2014

Lynn Margiotta makes a complaint of bullying against a garda member. This is made verbally at first as per policy.

July 23-30, 2014

Arrangements are put in train to deal with the bullying complaint through the Dignity in Work policy for public servants.

A meeting of union and management is postponed because of holiday arrangements.

August 11, 2014

Lynn Margiotta is arrested at her home in Navan by guards from Store St.

She is interviewed about sick notes which had been signed by her brother, Dr Tony Margiotta.

She is interviewed without a solicitor being present. The main evidence the gardaí were working off was that a number of sick notes signed by Dr Margiotta bore the stamp of two other GPs.

The process to deal with her complaint of bullying is not continued.

February 11, 2015

Professor Colin Bradley of UCC delivers a report on GP policy and working arrangements in the use of professional stamps.

June – July 2015

Dr Tony Margiotta is interviewed four times under caution about the “sick notes”.

He freely admitted that he signed the notes on the basis of his sister’s medical condition.

Other GPs had signed similar notes on other occasions for Lynn Margiotta.

He tells gardaí there was nothing unusual in using a colleague’s stamp.

September 18, 2015

Lynn Margiotta is arrested for a second time. A report in the Herald on that day quotes a source as saying this is a “lengthy investigation” into “fake sick certs”.

The source was also quoted as saying: “She was putting in for sick certs on days that it is suspected she was not sick at all.”

This is in conflict with evidence at the subsequent criminal trial which was told by the investigating garda that he believed she was sick at the time.

June 10, 2017

Lynn and Tony Margiotta are arrested at their homes without notice at 8am to be charged.

The date was a Saturday. Usually charges brought on a Saturday would relate to extradition, executing warrants, or violent or fatal crime.

July 2017

The solicitors for the siblings are made aware that the DPP would agree to the case being dealt with by the district court if the defendants plead guilty.

If they contest the charges the case will go to the Circuit Criminal Court, greatly raising the prospect of a prison sentence in the event of conviction.

The prosecution is obliged to discover all relevant evidence to the defence at this juncture. The Bradley report is not discovered.

It is unclear if the DPP was in possession of the report. The siblings opt to go for trial at the circuit court.

February 6, 2019

Defence solicitors receive the Bradley report in discovery for the trial.

If the defendants had pleaded guilty there is no reason to believe the Bradley report would ever have surfaced.

March 14, 2019

The trial opens in Dublin Circuit Criminal Court.

Most of the remainder of the trial is a voir dire, effectively a trial within a trial in the absence of the jury to determine if particular evidence should be admitted.

March 26, 2019

The trial collapses after Judge Patricia Ryan rules that Lynn Margiotta was denied the right to a solicitor while under arrest and her privacy had been breached by accessing her medical records without her consent or a warrant.

After four and a half years Lynn and Tony Margiotta finally have the cloud of a criminal conviction and possible prison sentence lifted.

March 26 – Present

Lynn Margiotta has not been formally contacted by her employer despite the end of the criminal proceedings.

For most of the last four and a half years she was without an income.

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