Garda Cleared of Assault on a Technicality - Question

OhNoYouDidn't

Story here:

http://www.independent.ie/national-news/courts/assault-case-against-garda--dismissed-on-technicality-1655543.html

My understanding is that criminal action cannot be taken against a Garda while an internal or ombudsman investigation is taking place. In this case, the statutes of limitation caught up with the prosecution. My question is why is this the case?

I work in a bank. If there is an allegation of fraud against me, I could be investgated by the bank, the Regulator, the IBF and the Fraud Squad. There is no way the Gardai would wait until the internal inquiry or my statutory regulator investigation is over to press charges if they felt the need.

Why is it different for the boys in blue?

sunnyjim

Possibly intended?

OhNoYouDidn't

sunnyjim wrote: »

Possibly intended?

I'm not so much looking at that side of it, rather why only one investigation at a time is allowed into the conduct of this profession as opposed to others?

CLADA

sunnyjim wrote: »

Possibly intended?

This investigation was carried out by the Garda Siochana Ombudsman Commission and was an independent investigation resulting in criminal charges against the Garda in question.

The process was as follows:

GSOC investigate.
They submit the investigation file to the DPP for direction.
They then prosecute as per instructions.

OhNoYouDidn't wrote:

Why is it different for the boys in blue?

It isn't, this was the only investigation and as a criminal investigation it takes precedence.

OhNoYouDidn't

CLADA wrote: »

This investigation was carried out by the Garda Siochana Ombudsman Commission and was an independent investigation resulting in criminal charges against the Garda in question.

The process was as follows:

GSOC investigate.
They submit the investigation file to the DPP for direction.
They then prosecute as per instructions.


It isn't, this was the only investigation and as a criminal investigation it takes precedence.

My point is why do the GSOC have to investigate before the DPP get involved? Why was he not charged with assault at the time and a GSOC investigation run in parrallel? Especially because the (alledged) offence took place when he was off duty.

Does the GSOC have to be brought in if a Garda is to be charged with an offence?

What other industry does a regultory body essentially have a veto over whether the professional in question is legally prosecuted?

cushtac

OhNoYouDidn't wrote: »

My point is why do the GSOC have to investigate before the DPP get involved? Why was he not charged with assault at the time and a GSOC investigation run in parrallel? Especially because the (alledged) offence took place when he was off duty.

No charges are brought without investigation, and since GSOC is supposed to investigate incidents involving Gardaí nothing could be done without GSOC first completing their work.

OhNoYouDidn't wrote: »

Does the GSOC have to be brought in if a Garda is to be charged with an offence?

GSOC is informed of all complaints made against Gardaí, it then decides if it will investigate the complaint itself or if it sends it back to the Gardaí for internal investigation.

OhNoYouDidn't wrote: »

What other industry does a regultory body essentially have a veto over whether the professional in question is legally prosecuted?

What other regulatory body has the power to investigate incidents and send files to the DPP?

Mr Jinx

OhNoYouDidn't wrote: »

My point is why do the GSOC have to investigate before the DPP get involved? Why was he not charged with assault at the time and a GSOC investigation run in parrallel? Especially because the (alledged) offence took place when he was off duty.

Does the GSOC have to be brought in if a Garda is to be charged with an offence?

What other industry does a regultory body essentially have a veto over whether the professional in question is legally prosecuted?

Thr DPP dont investigate crime, in this case there was one investigation by the Ombudsman. They then submit the file to the DPP for directions.

OhNoYouDidn't

cushtac wrote: »

No charges are brought without investigation, and since GSOC is supposed to investigate incidents involving Gardaí nothing could be done without GSOC first completing their work.

So the existance of the GSOC precludes me from pressing charges against an off duty Garda on a stand alone basis? Hypothetically if an off duty cop lamps me in a taxi he wanted, are you saying I can't press charges without me by proxy making a professional complaint?

If thats true, we are back to my original quesion; Why?

cushtac wrote: »

GSOC is informed of all complaints made against Gardaí, it then decides if it will investigate the complaint itself or if it sends it back to the Gardaí for internal investigation.

But this wasn't a complaint against Gardaí per say. It was a complaint made about an (alledged) abusive drunk who happened to be a Garda.

So what you are sayinhg is that if you can delay the GSOC investigation more than a year, no Garda can ever be found guilty of any crime, on or off duty? :eek:

cushtac wrote: »

What other regulatory body has the power to investigate incidents and send files to the DPP?

Financial Regulator. Medical Council. Aviation Authority. Broadcasting Commission. I'm sure there are others.

OhNoYouDidn't

Mr Jinx wrote: »

Thr DPP dont investigate crime, in this case there was one investigation by the Ombudsman. They then submit the file to the DPP for directions.

My point is why did the Gardai not, simultaniously and seperatly to the Ombudsman, deal with this guy like any other (alledged) assaultive drunk on Eyre Square?

cushtac

OhNoYouDidn't wrote: »

So the existance of the GSOC precludes me from pressing charges against an off duty Garda on a stand alone basis? Hypothetically if an off duty cop lamps me in a taxi he wanted, are you saying I can't press charges without me by proxy making a professional complaint?

If thats true, we are back to my original quesion; Why?

You don't press any criminal charges by yourself, you first have to make a complaint to the Gardaí who investigate the claim and charge or summons the suspected offender after consultation with the DPP. If you wish to press criminal charges against the Gardaí you first have to report it to the Gardaí, who will then inform GSOC, or you inform GSOC directly - either way it has to be investigated.

OhNoYouDidn't wrote: »

But this wasn't a complaint against Gardaí per say. It was a complaint made about an (alledged) abusive drunk who happened to be a Garda.

The complaint was about a Garda, the fact that he was off-duty has little relevance. GSOC had to be informed once it became known that a Garda was involved, if they weren't there would be allegations of improper conduct by the Garda she made the report to.

OhNoYouDidn't wrote: »

So what you are saying is that if you can delay the GSOC investigation more than a year, no Garda can ever be found guilty of any crime, on or off duty? :eek:

No one's said that at all. The case was thrown out because GSOC failed to prepare their file properly. If they could have provided the necessary proof of the commencement of the investigation then the case would have gone ahead. The case fell on a technicality, this sometimes happens. It's certainly not the fault of the defence, they were only doing their job - putting their client's case forward to their utmost.

OhNoYouDidn't wrote: »

Financial Regulator. Medical Council. Aviation Authority. Broadcasting Commission. I'm sure there are others.

None of the above have the powers available to GSOC, and I'm not sure any of them have the same ability to submit completed files to the DPP.

cushtac

OhNoYouDidn't wrote: »

My point is why did the Gardai not, simultaniously and seperatly to the Ombudsman, deal with this guy like any other (alledged) assaultive drunk on Eyre Square?

What do you mean by 'deal' with the guy? The only allegation was one of common assault, which is not an arrestable offence. Other than taking down his details, there's nothing the Garda at the scene could have done.

OhNoYouDidn't

Cushtac,

the crux of my question is this - can a Garda now not be prosecuted without the say so of the GSOC?

If so, why can a banker be prosecuted without the say so of the Financial Regulator or Financial Ombudsman, or a pilot the aviation authority, a doctor the Medical Council, a solicitor the Law Society etc? You see where I am going with this?

OhNoYouDidn't

cushtac wrote: »

What do you mean by 'deal' with the guy? The only allegation was one of common assault, which is not an arrestable offence. Other than taking down his details, there's nothing the Garda at the scene could have done.

Common assault is not arrestable? Jaysis, I'll have some fun (alledgedly) slapping youngones on the chin tonight if I can't get lifted.

Are you saying that Gardai can now no longer be processed by other Gardai?

Mr Jinx

OhNoYouDidn't wrote: »

Cushtac,

the crux of my question is this - can a Garda now not be prosecuted without the say so of the GSOC?

If so, why can a banker be prosecuted without the say so of the Financial Regulator or Financial Ombudsman, or a pilot the aviation authority, a doctor the Medical Council, a solicitor the Law Society etc? You see where I am going with this?

Yes that is correct, that is the role of GSOC so that any investigation is transparent and not investigated by other gardai which may cause people to question the investigation


Ask the financial regulator !

Mr Jinx

OhNoYouDidn't wrote: »

Cushtac,

the crux of my question is this - can a Garda now not be prosecuted without the say so of the GSOC?

If so, why can a banker be prosecuted without the say so of the Financial Regulator or Financial Ombudsman, or a pilot the aviation authority, a doctor the Medical Council, a solicitor the Law Society etc? You see where I am going with this?

OhNoYouDidn't wrote: »

Common assault is not arrestable? Jaysis, I'll have some fun (alledgedly) slapping youngones on the chin tonight if I can't get lifted.

Are you saying that Gardai can now no longer be processed by other Gardai?

See above post

cushtac

OhNoYouDidn't wrote: »

the crux of my question is this - can a Garda now not be prosecuted without the say so of the GSOC?

Technically they don't need to approve any prosecution, but since they are to be informed of any incident involving a Garda I don't see how this could happen. Even where someone doesn't make a complaint directly, GSOC have the authority to investigate any incident involving Gardaí and so could involve themselves with no invitation.

OhNoYouDidn't wrote: »

If so, why can a banker be prosecuted without the say so of the Financial Regulator or Financial Ombudsman, or a pilot the aviation authority, a doctor the Medical Council, a solicitor the Law Society etc? You see where I am going with this?

There's a massive difference between those regulatory bodies and GSOC, for a start none of those bodies have powers of arrest & detention. Go have a look a the GSOC website and see for yourself.

OhNoYouDidn't

Question answered so. Thanks chaps.

Oh, and if one or more of you could PM me your names and badge numbers for later when I'm explaining to one of your collegues that a Garda told me common assault is not arrestible, so he can put the truncheon down I would be most obliged!

cushtac

OhNoYouDidn't wrote: »

Common assault is not arrestable? Jaysis, I'll have some fun (alledgedly) slapping youngones on the chin tonight if I can't get lifted.

Unless the incident is witnessed by a Garda there can be no arrest. If it witnessed by a Garda they can arrest for a breach of the peace.

OhNoYouDidn't

cushtac wrote: »

Unless the incident is witnessed by a Garda there can be no arrest. If it witnessed by a Garda they can arrest for a breach of the peace.

So if I boot fcuk out of someone on Grafton St tonight in full view of 100 witnesses and assorted CCTV systems and hang around, I cannot be arrested if the Gardai did not observe the incident?

civdef

Then that'll be something more than common assault - unless you are very poor at booting.

cushtac

OhNoYouDidn't wrote: »

So if I boot fcuk out of someone on Grafton St tonight in full view of 100 witnesses and assorted CCTV systems and hang around, I cannot be arrested if the Gardai did not observe the incident?

That would be assault causing harm, or maybe serious harm, and is a different kettle of fish.

McCrack

OhNoYouDidn't wrote: »

Question answered so. Thanks chaps.

Oh, and if one or more of you could PM me your names and badge numbers for later when I'm explaining to one of your collegues that a Garda told me common assault is not arrestible, so he can put the truncheon down I would be most obliged!

No youre misunderstanding. Arrestable offence in law means any offence punished by imprisonment for a term of 5 years or more. (S.2(1) Criminal Law Act 1997). Assault (S. 2 NFOAPA 1997) is a summery offence which means it's only heard in the District Court and the legislation says the max jail is 6 months if convicted. Consequently assault is not an arrestable offence in law and all the additional powers Gardai have for arrestable offences don't apply. People of course can be arrested for assault but it's not an arrestable offence....if you get me.

http://www.irishstatutebook.ie/1997/en/act/pub/0026/sec0002.html#zza26y1997s2

OhNoYouDidn't

McCrack wrote: »

No youre misunderstanding. Arrestable offence in law means any offence punished by imprisonment for a term of 5 years or more. (S.2(1) Criminal Law Act 1997). Assault (S. 2 NFOAPA 1997) is a summery offence which means it's only heard in the District Court and the legislation says the max jail is 6 months if convicted. Consequently assault is not an arrestable offence in law and all the additional powers Gardai have for arrestable offences don't apply. People of course can be arrested for assault but it's not an arrestable offence....if you get me.

http://www.irishstatutebook.ie/1997/en/act/pub/0026/sec0002.html#zza26y1997s2

Gotcha. Thats what I thought he meant, but the comment from cushtac that the Garda could only take my name confused the issue

sunnyjim

cushtac wrote: »

That would be assault causing harm, or maybe serious harm, and is a different kettle of fish.

A drunk bloke giving a girl a few slaps would be my definition of causing harm.

Whitewater-AGS

sunnyjim wrote: »

A drunk bloke giving a girl a few slaps would be my definition of causing harm.

Thata not how the law see's it though, if she had gotten bad cuts, bruises or scares then that would be assault causing harm.

cushtac

OhNoYouDidn't wrote: »

Gotcha. Thats what I thought he meant, but the comment from cushtac that the Garda could only take my name confused the issue

That's all they could do if they hadn't witnessed the assault, there was no sign of injury (as was the case in Galway) and there were no other offences being committed. All that a Garda can do in such circumstances is take the details of all involved parties for later investigation.

sunnyjim wrote: »

A drunk bloke giving a girl a few slaps would be my definition of causing harm.

Your definition differs from the legal one, which is what the Gardaí are bound by.

McCrack

sunnyjim wrote: »

A drunk bloke giving a girl a few slaps would be my definition of causing harm.

No you need to seperate the ordinary meaning of harm and the legal meaning. S3. assault causing harm means harm to the body or mind and includes pain and unconsciousness; slapping a person in the face once or a number of times wont fall into this category, it falls into S2. assault.

OhNoYouDidn't

cushtac wrote: »

That's all they could do if they hadn't witnessed the assault, there was no sign of injury (as was the case in Galway) and there were no other offences being committed. All that a Garda can do in such circumstances is take the details of all involved parties for later investigation.

He drew blood.....

Be honest, if this guy worked on a building site, he would have been down the cells.

Whitewater-AGS

OhNoYouDidn't wrote: »

He drew blood.....

Be honest, if this guy worked on a building site, he would have been down the cells.

Well if the lip was split to the extent that i felt stitches where going to be needed your right he would be in the cells but that does not appear to be the case here going by what the article says anyways. As has already been explained here what happened in galways was not an arrestable offence and i dont think his arrest would have changed the outcome anyway tbh.

cushtac

OhNoYouDidn't wrote: »

He drew blood.....

Be honest, if this guy worked on a building site, he would have been down the cells.

The article states that she later found that the inside of her lip was bleeding, which infers that she did not realise she had been cut until after the event. That would not have been enough to constitute a S.3 assault.

It wouldn't have mattered if he was the pope, as you have been already told he could not have been arrested for common assault and since no other offence was alleged his arrest & detention would have been unlawful.

It has already been explained to you why he could not have been arrested, yet you don't seem willing to accept this & seem to be of the opinion that he was somehow given preferential treatment because he was a Garda. What's your issue with the Gardaí?

deadwood

People are confusing "arrestable" for prosecution.

Eru

OhNoYouDidn't wrote: »

Cushtac,

the crux of my question is this - can a Garda now not be prosecuted without the say so of the GSOC?

If so, why can a banker be prosecuted without the say so of the Financial Regulator or Financial Ombudsman, or a pilot the aviation authority, a doctor the Medical Council, a solicitor the Law Society etc? You see where I am going with this?

OhNoYouDidn't wrote: »

So if I boot fcuk out of someone on Grafton St tonight in full view of 100 witnesses and assorted CCTV systems and hang around, I cannot be arrested if the Gardai did not observe the incident?

OhNoYouDidn't wrote: »

He drew blood.....

Be honest, if this guy worked on a building site, he would have been down the cells.

You have a seriously distorted view and understanding of Irish law and the various sections within it. You need to sit down and first understand the various types of law and the difference between the Gardai, GSOC and various other agencies.

Once your understanding of our justice system is up to scratch you can read stories in a paper and make an informed opinion about the situation instead of using the taboids opinion to try and argue with those that do actually know the law and above all, understand it because all you have done so far is make yourself appear foolish and uneducated.

Blazer

I think because it's the first ombudsman case to go to trial and the muppets couldn't even get it right.
I think people are sick of hearing about scum (and this guard is one) getting off scot free on technicalities because the Guards or the DPP screwed up.
I was sickened to see that paedophile judge get off scot free on child porn charges because the fcuking idiots didn't realise how long a warrant lasts for despite most of them being in the job for years.
And it's the same on a weekly basis.
I know a lot of scumbags get convicted and we only ever heard about the ones that get away but it still pisses people off.

Eru

Mathew Reilly wrote: »

I think because it's the first ombudsman case to go to trial and the muppets couldn't even get it right.
I think people are sick of hearing about scum (and this guard is one) getting off scot free on technicalities because the Guards or the DPP screwed up.
I was sickened to see that paedophile judge get off scot free on child porn charges because the fcuking idiots didn't realise how long a warrant lasts for despite most of them being in the job for years.And it's the same on a weekly basis.
I know a lot of scumbags get convicted and we only ever heard about the ones that get away but it still pisses people off.

You do realise that it was this very case that decided how long the bloody warrant lasts for dont you? Its called case law and on this occasion the judge made a first time decision concerning warrants. Until this case warrants had been served and accepted in law on dozens of occasions.

I will tell you the same as I just told the OP. Learn and understand a subject before debating it.

cushtac

Mathew Reilly wrote: »

I was sickened to see that paedophile judge get off scot free on child porn charges because the fcuking idiots didn't realise how long a warrant lasts for despite most of them being in the job for years.

The warrant never specified a time, merely the number of days it was valid for. In previous cases the time of the issuing of the warrant had never been an issue, yet in this case (one involving a judge) a judge rules that all of a sudden it was. Draw your own conclusions.

CiaranC

Eru wrote: »

Once your understanding of our justice system is up to scratch you can read stories in a paper and make an informed opinion about the situation instead of using the taboids opinion to try and argue with those that do actually know the law and above all, understand it because all you have done so far is make yourself appear foolish and uneducated.

Geez, talk about arrogance. All he was doing was asking those in the know for some information.

Eru

CiaranC wrote: »

Geez, talk about arrogance. All he was doing was asking those in the know for some information.

And if you believe thats all he was 'trying to do' then I have a bridge for sale

cushtac

CiaranC wrote: »

Geez, talk about arrogance. All he was doing was asking those in the know for some information.

Then ignoring what he was told & persisting with erroneous ideas.

Blazer

cushtac wrote: »

The warrant never specified a time, merely the number of days it was valid for. In previous cases the time of the issuing of the warrant had never been an issue, yet in this case (one involving a judge) a judge rules that all of a sudden it was. Draw your own conclusions.

Thanks Cushtac...a much more politer response than Eru.
My betting is he's in it for a longer time than you.

McCrack

Eru wrote: »

You have a seriously distorted view and understanding of Irish law and the various sections within it. You need to sit down and first understand the various types of law and the difference between the Gardai, GSOC and various other agencies.

Once your understanding of our justice system is up to scratch you can read stories in a paper and make an informed opinion about the situation instead of using the taboids opinion to try and argue with those that do actually know the law and above all, understand it because all you have done so far is make yourself appear foolish and uneducated.

I dont think that's fair. The OP raised objective and reasonable Q's and I didnt get any hint of 'Garda-bashing' off them. It's probably the wrong forum to ask them in but nevertheless I dont think these comments are helpful.

McCrack

Eru wrote: »

You do realise that it was this very case that decided how long the bloody warrant lasts for dont you? Its called case law and on this occasion the judge made a first time decision concerning warrants. Until this case warrants had been served and accepted in law on dozens of occasions.

I will tell you the same as I just told the OP. Learn and understand a subject before debating it.

The Judge Curtin saga? I'm not aware of any legal precedent made regarding the execution of search warrants. What Judge/Court are you referring to and what new ground did the decision set?

cushtac

McCrack wrote: »

The OP raised objective and reasonable Q's and I didnt get any hint of 'Garda-bashing' off them.

He implied that the Gardaí hadn't arrested the suspect because he was a colleague, which isn't true and isn't fair.

Eru

McCrack wrote: »

The Judge Curtin saga? I'm not aware of any legal precedent made regarding the execution of search warrants. What Judge/Court are you referring to and what new ground did the decision set?

Already answered by another poster.

The whole thread was bashing supposed inaction or incompetance by Gardai. I like numerous others have pointed out why those views are incorrect. If your going to ask a question, ask it and I will answer fairly but the OP and the poster above have made statements suggesting incorrect action on the part of Gardai where there is no incorrect action. If you dont see that, well how much are you offering for my bridge?

McCrack

cushtac wrote: »

He implied that the Gardaí hadn't arrested the suspect because he was a colleague, which isn't true and isn't fair.

I'm referring to the poster who opened this thread (OhNoYouDidn't). I cant see anything by that poster to suggest garda-bashing nor that the Garda didnt arrest a colleague because he was a member. If you can please enlighten me.

Again I reiterate that certain replies to the OP have been unhelpful to say the least than then again can most posters on the forum be objective on a matter like this? Again the wrong forum to post this question.

cushtac

McCrack wrote: »

I'm referring to the poster who opened this thread (OhNoYouDidn't). I cant see anything by that poster to suggest garda-bashing nor that the Garda didnt arrest a colleague because he was a member. If you can please enlighten me.

See post #28

TheNog

McCrack wrote: »

Again I reiterate that certain replies to the OP have been unhelpful to say the least

I agree. People tone down your posts please. Absolutely no need to get on high horses.

than then again can most posters on the forum be objective on a matter like this?

Why do you ask that question?

I think most if not all can be objective. After all we deal with thousands of assault victims each year and see the end result on the victims. Also I do not respect any person committing an assault on another, Garda or not. This fella has done alot of damage to the organisation as a whole. Something we will have to deal with for some time.

Again the wrong forum to post this question.

Why is the wrong forum?

The OP came here to get information from people in the know and here or the Legal Discussion is where the correct information can be got. Not in After Hours or the Galway forum where threads on this case are turning into all Guards are bastards and in cohoots with the Ombi man and the DPP.

McCrack

Eru wrote: »

Already answered by another poster.

The whole thread was bashing supposed inaction or incompetance by Gardai. I like numerous others have pointed out why those views are incorrect. If your going to ask a question, ask it and I will answer fairly but the OP and the poster above have made statements suggesting incorrect action on the part of Gardai where there is no incorrect action. If you dont see that, well how much are you offering for my bridge?

Youre avoiding my question to you re the warrants and the Curtin precedent you say was made. No other poster on this thread has addressed that and answered it like you claim.

In my opinion the thread was not started by the OP with any agenda except educated questioning of the GSOC and it's role in criminal prosecution of members and why a matter concerning an off-duty member needs to be referred to them first and not the DPP and the resultant collapse of the trial...legitimate Q's.

You posts have been too defensive and unhelpful.

McCrack

cushtac wrote: »

See post #28

Yes ie the trial would not of collapsed and if convicted there would of been a chance he would of been imprisoned ie "in the cells"

Thats not Garda bashing like you and some others seem to suggest the OP motives are.

johnnyskeleton

I'm not sure if the OP has had a satisfactory answer or not, but in any event when there is an obudsman prosecution the time limit for serving a summons is 12 months instead of 6 months. The summons in this case was obviously issued somewhere between 6 and 12 months after the alleged offence.

Just to assure the OP, the technicality is used far more often to thwart gardai than it is to defend them (as this is a garda forum I am not going to discuss the technicality, as it's far too much fun).

cushtac

McCrack wrote: »

Yes ie the trial would not of collapsed and if convicted there would of been a chance he would of been imprisoned ie "in the cells"

Thats not Garda bashing like you and some others seem to suggest the OP motives are.

I don't think that's what he meant at all. He had previously been talking about how the Gardaí dealt with the incident, asking why the suspect wasn't dealt with like anyone else. When this was pointed out to him he suggested that if he had been a builder he would have been in the cells, which commonly refers to police custody.

Given that the matter of the collapsed trial hadn't come up in about 10 posts, and nearly every post in between had been about the Gardaí, I find it hard to believe he was suddenly referring back to the court case & was talking about prison.

Whitewater-AGS

I think the OP's question regarding gsoc,dpp and no arrest have been answered several times at this stage, so i'm done with this thread.