Does 'no-car-tax Garda' verdict set a precedent? (Double Jeopardy)

Dubwat

I'm not a lawyer but I'm wondering if this case sets a precedent? Could other accused people use the 'double jeopardy' rule to escape punishment for not having car tax etc?

Judge dismisses charges against garda who used tax disc from station for his Lexus (BreakingNews.ie, 11 Nov 2013)

A garda who admitted using a motor tax disc – which had gone missing from his station – on his own car, had theft and fraud charges dismissed by a judge today.

However, the cash-strapped 44-year-old officer, who appeared at Dublin District Court received a €500 fine for a less serious offence of not having his car taxed.

Tallaght-based Garda Damien Dempsey had been found guilty by Judge Hugh O'Donnell earlier of stealing a motor tax disc from his superior's office, fraudulently using it on his own car and not having motor insurance.

Judge O'Donnell had already said that the tax disc was worthless by the time charges were brought and he had compared the possibility of Gda Dempsey having to face internal disciplinary proceedings to “double jeopardy”.

He had failed to get an undertaking from gardaí that the officer would not face disciplinary proceedings following the case.

The newspaper report linked above has the full details. But, briefly, the Garda was going through a rough patch in his private life and had financial problems. He couldn't afford to tax and insure his private car. Although his private car was off the road, he took an official Garda tax disc from the Garda station and put it on his own car. He admitted some offences and denied others. He was convicted 'for a less serious offence of not having his car taxed.'

The judge asked if the Garda would be prosecuted a second time by the Garda authorities if he was convicted in the District Court. The prosecution team could not give those assurances. It looks like the judge ruled that double jeopardy might apply and dismissed some of the charges.

I wonder if that ruling might have wider implications?

There must be lots of jobs/vocations/professions where you have to pay 'X' (motor tax/insurance) to be registered as a 'Y' (insured car), otherwise you can't work as 'Z' (insured driver).

For example, could an independent trucker get away with no tax/insurance if his employer would sack him for the same offence if he were convicted in the District Court? Or drink driving? AFAIK, You have to be a 'registered' gas installer or electrican. Could you escape prosecution for not being registered for whatever reason if it affected your livelihood? Could a solictor get away with not paying his solictor's insurance because the Law Society might come after him a second time?

Carawaystick

Firstly,
District courts set no precedent.

And it's not Double Jeopardy, your employer sacking you for being a criminal, after you were convicted is not the same as the state prosecuting you twice for the same act



I think the Judge erred here, The fact that a conviction would be used as evidence in an employer disciplinary procedure should have no bearing on whether the conviction should stand, but should (possibly) mitigate the sentence.

Victor

I disagree with the judge. The Garda disciplinary proceedings are brought for separate offences - breaching Garda discipline.

Fred Swanson

This post has been deleted.

TheNog

Carawaystick wrote: »

Firstly,
District courts set no precedent.

And it's not Double Jeopardy, your employer sacking you for being a criminal, after you were convicted is not the same as the state prosecuting you twice for the same act

But isn't there the possibility of double jeopardy of the state prosecuting twice for the same act in this case? The Garda was brought to court by the state (his employer) and could face dismissal by the state (again his employer)

234

By that's not being prosecuted twice; there is only one prosecution.

From the point of view of a criminal charge the defendant's employment by the state is merely incidental.

From the defendant's point of view as an employee, he can face disciplinary action just like any employee can if the crime is related to his work. It would be a perverse situation where state employees could not be disciplined or dismissed where they were convicted of a crime just because of their status as state employees.

These concerns all apply even more to AGS where they have to be held to high standards as they are the enforcers of the criminal law.

Thoie

TheNog wrote: »

But isn't there the possibility of double jeopardy of the state prosecuting twice for the same act in this case? The Garda was brought to court by the state (his employer) and could face dismissal by the state (again his employer)

Surely the second one isn't a prosecution though, it's a disciplinary matter. If I stole something at work, I'd expect there to be a criminal case (for the theft) and disciplinary action at work. The criminal case is taken because I've broken a law of the land. Just because I will face disciplinary proceedings at work as well shouldn't have any bearing on how the criminal case goes. The disciplinary action at work would result in the same outcome no matter who employed me - I'd lose my job. If the tax disc had been stolen from an OPW office instead of a Garda station, similar sanctions would surely apply.

Carawaystick

I remember a case where a dept. social welfare employee was sacked for failing to turn up to a disciplinary hearing
Because she was in Mountjoy as a convict.

234

Sounds ripe for appeal, but definitely in the best traditions of civil service reasoning.