The State (Burke) v Garvey

• Jurisdiction: Ireland
• Judge: GRIFFIN J.
• Judgment Date: 12 November 1979
• Neutral Citation: 1980 WJSC-SC 21
• Docket Number: (75-1979)
• Court: Supreme Court
• Date: 12 November 1979

1980 WJSC-SC 21

THE SUPREME COURT

O'Higgins C.J.

Griffin J.

Parke J.

(75-1979)

State (BURKE) v. GARVEY

THE STATE (AT THE PROSECUTION OF JOHN C. BURKE)

and

EDMUND P. GARVEY, COMMISSIONER OF THE GARDA SIOCHANA

Reversing High - 14/3/79

1 JUDGMENT OF GRIFFIN J. delivered the 12th November 1979

2 The prosecutor joined the Garda Síochána on the 15th of May, 1974. He underwent his training at the Garda Training Centre, Templemore, and on the completion thereof he was transferred to Castlefin, Co. Donegal on the 20th of September, 1974. This Station is close to the Border and the gardai there are involved to a large extent in patrolling the Border. On the 22nd of November, 1974 and on the two following days the prosecutor was absent from three spells of duty without the prior permission of his superiors. He had, apparently, arranged with two colleagues to substitute for him on these three occasions, but one of the colleagues whom he believed would substitute for him on the 23rd of November did not do so, as he alleged that no arrangement in relation to that date had been made with him. In January, 1975, Superintendent Howard from Letterkenny Garda Station was appointed to investigate this alleged breach of discipline by the prosecutor. In the course of the investigation, the prosecutor, in writing, admitted the charge. Later, at the enquiry held in Letterkenny in September, 1975, the prosecutor changed his plea, but he was found guilty of the breach of discipline and a fine was imposed on him.

3 In the early hours of the morning of the 22nd of February, 1976, the prosecutor and another member of the Force were on duty at a checkpoint at the Border crossing at Cloughfin, approximately 3 miles from Castlefin, being the checkpoint at which the prosecutor had invariably been on duty since his transfer to Castlefin. On that morning, special precautions were in operation on the Border and directions had been issued to all members of the Force on duty on the Border to stop all vehicles crossing the Border, and to search thoroughly and check all such vehicles and all occupants thereof. Inspector English, of Letterkenny Garda Station, was on duty supervising the gardai on checkpoint duty on the Border in the Letterkenny Garda district, and at approximately 5.55 a.m. on that morning he drove across the Border from the direction of Northern Ireland, with the full head lights of his motor car lighting. There was no garda on duty on the road at the checkpoint and the door of the garda hut nearby was closed. Having passed the checkpoint, the Inspector stopped his car and went into the garda hut. He was at the time wearing his full Inspector's uniform. The prosecutor and another member of the Force were in the hut. The prosecutor was sitting on a chair, wearing his great coat, which was open, but he was not wearing his cap. The Inspector told the two members there that he had driven across the Border from Clady village and had passed their checkpoint, without being stopped, and he asked why he had not been stopped. The prosecutor replied: "Sure you are stopped; is not that enough". The Inspector replied that it was not enough, and said to the prosecutor that he appeared to him to be half asleep.

4 The facts in respect of the events of November, 1974 and the 22nd of February, 1976 were not disputed by the prosecutor. He was at that time what is known as a recruit-guard. A recruit-guard is appointed for a probationary period of two years under Act. 8 of the Garda Siochana (Appointments) Regulations, 1945, ( S.I. No. 173 of 1945), as amended by Art. 6 of the Garda Síochána...