A Garda sergeant convicted of sexually assaulting a young woman has launched a High Court action aimed at preventing his dismissal from the force.
The action has been taken by Sergeant Cathal Middleton, who claims that the Garda Commissioner's proposal that he should be summarily dismissed from his job, before his appeal against his conviction is heard and in the absence of any disciplinary hearing or inquiry, is flawed and in breach of fair procedures.
In October of last year, Sergeant Middleton was found guilty at a sitting of Blanchardstown District Court of one count of Sexual Assault Contrary to Section 2 of the 1990 Criminal Law (Rape) Amendment Act, as amended by Section 37 of the 2001 Sex Offenders Act.
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He denied the charge.
The District Court heard that Sgt Middleton on March 2nd 2020 last at an address in Lucan got into a bed with a woman after a night out with her friends.
The woman, who was not on the night out, was asleep at the time.
She alleged that after Sgt Middleton got into her bed, the outside of his right thigh touched her fully clothed buttock.
She said that she shouted at him to get out of the bed, which she says he did.
At all stages the South Dublin-based Sgt Middleton denied ever getting into the bed with the woman.
Following his conviction Sgt Middleton was subsequently jailed for five months by the District Court judge.
He has appealed the conviction.
Arising out of the conviction Garda Commissioner informed 42-year-old Sgt Middleton last December stating that the applicant had engaged in "discredible conduct" under Garda disciplinary regulations.
The Commissioner added that he was proposing to dismiss the sergeant from An Garda Siochana on that grounds that he was considered "unfit for retention."
The Commissioner did not believe that the holding of an internal Garda inquiry into the matter, nor the fact that an appeal remains outstanding, would result in him changing his mind about Sgt Middleton's proposed dismissal.
Represented by Mark Harty SC, with Oisin Clarke Bl, instructed by Sean Costello Solicitors Sgt Middleton claims that the Commissioner has erred in law by recommending his dismissi=al before the appeal against the criminal conviction has been determined.
The Commissioner's decision, it is claimed, amounts to a breach of Sgt Middleton's constitutional rights to fair procedure and natural justice.
The Commissioner, who it is claimed has acted outside of his powers in this matter, it is also submitted.
In his judicial review proceedings, Sgt Middleton, who has been a Garda since 2002, seeks various orders including one quashing the Commissioner's decision to recommend the applicant's dismissal.
He also seeks an order preventing the Commissioner from taking any further steps to dismiss Sgt Middleton from An Garda Siochana.
The action came before Mr Justice Charles Meenan on Monday, who on an ex-parte basis granted Sergeant Middleton permission to bring his challenge.
The matter was adjourned, and will be mentioned before the court later this year.
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