Judge rules that gardaí did not act unreasonably during alleged 'assault' incident

Following a Garda Síochana Ombudsman Commission (GSOC) investigation, both gardaí were charged with assault under Section 2 of the Non-Fatal Offences Against the Person Act, 1997.

Gardaí who were trying to help an elderly lady, distressed after her car was clamped in Cork, were later accused of assault by the clamper.

Tomasz Luczak alleged that his finger had been injured when he was arrested after being resistant to showing Sergeant Kieran Kelleher and Garda Richard O’Sullivan his driving licence or giving his name and address when requested.

His finger was “inflamed” and sustained a “soft tissue injury” which healed in weeks, Cork District Court heard.

Mr Luczak was working for Apcoa clamping vehicles on March 14, 2023 in Time Square, Ballincollig, Co Cork, when the incident took place.

He had returned to remove a clamp he placed on a car there that morning when a garda at the scene asked for his driving licence. 

But Mr Luczak initially believed he did not have to show gardaí his driving licence. He removed the clamp and then took a phone call and brought the clamp back to his own vehicle, instead of providing the driving licence or his name and address as an alternative to Sgt Kelleher.

A garda then “grabbed my hands and started walking me to the Garda patrol car, saying ‘you’re under arrest’. I said ‘for what? Not giving my driving licence?'" He alleged that gardaí forced him against the vehicle.

Following a Garda Síochana Ombudsman Commission (GSOC) investigation, both gardaí were charged with assault under Section 2 of the Non-Fatal Offences Against the Person Act, 1997.

Barrister for Sgt Kelleher, Amy Nix, BL, said, after viewing CCTV of the majority of the incident, that the only physical contact was when Gda O’Sullivan grabbed him in a soft hand hold and walked him towards the van when he was arrested. This action was allowed in the law when someone did not comply with a garda’s orders.

Sgt Kelleher had used no physical force at all, she said. Only low-level force was applied, with no batons, pepper spray, or handcuffs which was proportionate and lawful, she said.

But barrister for the State Paula McCarthy, BL, said the CCTV clearly showed that Mr Luczak displayed no aggression to gardaí.

Independent witnesses, who had been at the scene that day, also said that Mr Luczak had not appeared to be in any way aggressive.

One witness, Micheál Hurley, who works on the square, said that there was some “pushing and shoving” and Mr Luczak was pushed against the squad car.

“Mr Luczak was very cool, composed. There was no air of aggression, he didn’t seem distressed."

But the gardaí’s demeanour was confrontational, he said.

It was like one garda was “trying to push his buttons,” another independent witness said.

But Judge Joanne Carroll noted that gardaí asked Mr Luczak for his driving licence but he did not comply and took a phone call instead.

Katherine McGillicuddy, BL for Garda O'Sullivan, noted from CCTV footage that it took more than 10 minutes for the witness to provide gardaí with his driving licence following the request.

Once he supplied his driving licence, the incident ended, the court heard.

“I put to you that you were aggressive and uncooperative with both gardaí. You had your fists clenched and shoulders up. Gardaí thought that you were behaving aggressively,” Ms McGillicuddy said.

Sgt Kelleher had served with An Garda Síochána for 30 years, in multiple Cork stations and with the UN in Sarajevo. This was his first ever disciplinary procedure.

In a statement to GSOC, he said that he was sent to Time Square in Ballincollig that day where he met the woman whose car had been clamped.

He had never met her before, she told him she was diabetic and had not eaten that day. She had gone for a dental appointment and returned to find her car clamped. The clamper also left a large sticker on her window which she was afraid would not come off fully and would obscure her vision so much it would be unsafe to drive.

“She had begun to panic not knowing how to deal with the clamp,” Sgt Kelleher said.

“I left her sit in the garda car to keep her warm.

“She said she had a disability sticker [to permit her to park].” Sgt Kelleher said he was concerned that placing the large sticker across her car window may be a possible criminal damage offence so he remained to speak to the clamper.

“When I cautioned him, he laughed.

“He did not seem to take the situation seriously, or the upset caused to [the woman].

“He refused to give me his details, ignored my request for his driving licence.

“I was concerned why he would not give me his name or details.” 

In Gda O’Sullivan’s statement to GSOC, he said that Sgt Kelleher had given the defendant “every chance” to comply but he still refused.

“Mr Luczak was very angry, fists clenched,” Gda O’Sullivan said.

Gda O’Sullivan had 28 years service and no previous complaints to GSOC, Ms McGillicuddy said.

Judge Joanne Carroll said that neither could be convicted of assault on the basis of the evidence.

“In my view, Mr Luczak was uncooperative […] and extremely belligerent.

“He refused to supply his name and address to Sgt Kelleher, and continued to refuse to provide these details for an unreasonable amount of time.

“In my view, Garda Kelleher and Garda O’Sullivan acted proportionately and reasonably at all times.

“There is no case to answer.”