Disturbing questions arise in case against civilian member of gardaí over sick certs

The three gardaí were from Store St station in Dublin, where she worked as a civilian member of the force. She thought something was up, perhaps bad news related to her elderly father.

Instead, they told her she was under arrest for suspected fraud. The fraud was in connection with how she had obtained medical certificates to cover for days she was absent from work.

She was perplexed. If there was any issue over “sick notes” she would have thought it was a matter for her direct line manager and then human resources. She had had no communication on the matter from the human resources department in An Garda Síochána.

She addressed the arresting gardaí by their first names, and they all called her Lynn. She asked could she have a shower and they consented. Then they brought her to Navan Garda Station, where she was interviewed.

So began a four-and-a-half year journey that ended on March 26 last in Dublin Circuit Criminal Court. The trial had opened the previous week but had been largely confined to a trial within a trial in the absence of the jury, known as voir dire.

This is conducted to determine whether particular evidence is to be admissible.

Following that, Judge Patricia Ryan ruled that Ms Margiotta had been denied access to a solicitor while in custody and her privacy had been breached by accessing medical records without consent. The case against her, and her brother Tony, who is a doctor, was dropped.

Ms Margiotta was relieved that the case had ended but utterly dismayed that it had occurred at all.

“It had a huge impact on me, my family and particularly my elderly father. In the Autumn of his life he had to see his two adult children under criminal investigation.

“I would like somebody to be held accountable,” she said.

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Disturbing questions do arise from the case. The investigation had many curious features. There is an issue over whether Ms Margiotta’s employment at Store St had any bearing on how the matter was investigated.

She has not been contacted by her employer since her arrest in August 2014. The role of the DPP is also curious. As of now, the Garda commissioner has not ordered any investigation into the case.

The first arrest

Lynn Margiotta grew up, one of two children, in Finglas on the northside of Dublin.

She joined the civil service in 1994. Five years later she transferred from the Department of Justice to the district office in the Store St station in the city centre.

Over the following 14 years she worked there without incident. She never complained about a colleague or garda, she was never the subject of any disciplinary issue.

In 2013, Lynn’s mother became ill, but her death in January 2014 was sudden. Lynn had lived at home and was very close to her mother. A garda escort was provided at the funeral.

Afterwards, Lynn suffered a form of depression. She was absent for work on over a dozen occasions between January and July 2014.

Later, in a cautioned interview, she explained how she had been affected.

“Nothing in life prepares you for the death of a parent. My mom died very suddenly in hospital and I was there. I witnessed it and it had a serious affect on me and as a result I took a bit of time off work.

“I went back for maybe a day or two but just didn’t feel I was giving my full potential to the job. I didn’t feel I was able for it.”

The doctors’ certs to cover her sick leave were signed by her brother Tony, a general practitioner, who worked in the Boroimhe medical centre in Swords, where Lynn was a patient. He also worked as a locum in a practice in Ratoath, Co Meath, from where he also signed certs.

These certs had the stamp of other doctors who worked, or had worked, full-time in the two practices. Colin Bradley, a professor of general practice at UCC, stated to gardaí that it was not unusual for locums to use another doctor’s stamp while filling out sick certs. The practice, he said, was unregulated.

At the trial last month, Supt Des McTiernan told the court that he believed Ms Margiotta when she said she was sick. He said he was investigating whether the certs were used to obtain sick leave by deception. Whether she was sick or not was irrelevant, he said.

In July 2014, six months after her mother’s death, issues arose between Lynn Margiotta and a garda member in the station.

On July 24, Ms Margiotta lodged a complaint of bullying against this garda member. A few weeks later, on August 11, the three gardaí showed up at her Navan home to arrest her.

There were curious features to the arrest. In the first instance, the arresting gardaí had worked with Lynn Margiotta, some of them for a number of years. One of them had shared a house with another member with whom Lynn had had a relationship.

Ordinarily, if a garda had been arrested it would be regarded as bad practice for the investigation to be conducted with colleagues from the same station. Yet, for some reason, this did not apply in the case of Lynn Margiotta, a civilian employee of the force.

The timing of the arrest was also curious. Supt McTiernan (he was an inspector in 2014) stated that he became aware of the issue sometime before August 11. He didn’t state how long before he had become aware.

“Prior to August 11, 2014, I was in receipt of information to the effect that one Lynn Margiotta was submitting medical certificates that may have been falsified,” he said in a statement.

In any event, the arrest must have occurred early in the investigation. Typically, a police investigation gathers all the evidence before an arrest. The evidence is then put to the suspect in an interview.

Ms Margiotta received no advance notice of it. In considering whether to arrest a suspect, the police must take into account issues like legality, proportionality and necessity. The arrest appears to have been legal. Whether it was proportionate or necessary is another matter.

Lynn Margiotta was held for nearly 12 hours, including a six-hour extension on her original detention. The reason given in applying for the extension was to establish a “motive” for the alleged crime.

Ms Margiotta didn’t return to work. She felt she couldn’t under the circumstances, even though she was not suspended. Her bullying allegation was not dealt with. For most of the last four-and-a-half years Ms Margiotta has been without an income.

The second arrest

Following her arrest on August 11, 2014, Lynn Margiotta was left in a form of limbo.

Her solicitor, Yvonne Bambury, made repeated attempts to find out what was going on. Then, over a year later, on September 18, 2015 she was arrested for a second time. On this occasion, she did receive advance notice as, under the circumstances, she would be entitled to expect.

During this interview she was shown a number of the doctors’ certificates. She refused to say anything under legal advice. This arrest was also curious.

Ordinarily, a suspect is only arrested on a second occasion if fresh evidence comes to light. The doctor’s certs placed before her were all available to the gardaí at the time of the first arrest. Why they had not been produced then and why it took a further year to actually assemble them, is curious.

The evening of her second arrest a front page story was splashed across The Herald newspaper. The headline on the piece stated: “Dublin based garda employee arrested for using ‘fake sick certs’.”

A “source” was quoted in the story. “She was putting in sick certs for days that is it suspected she was not sick at all.”

The “source” obviously provided inaccurate information as Supt McTiernan told Dublin Circuit criminal court last month that he believed she was sick.

The piece also noted that a “lengthy investigation” into the matter had been conducted. Lengthy investigations tend usually to involve suspected crimes like intricate financial dealings in banking, organised gang crime, or murder.

This “lengthy investigation” was concerned with the means by which a sick Garda employee had acquired a sick note.

The front page article went on:

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Lynn Margiotta was released from custody later that day.

Her brother Tony Margiotta was also interviewed by gardaí on number of occasions between June and August 2015. He attended in a voluntary capacity in the company of a solicitor and he was not arrested.

The charge

Around 8am on the morning of June 10, 2017, Lynn Margiotta answered the door of her father’s home in Finglas. Another visit from the gardaí. She was told she was to be taken to court to be charged. The date was a Saturday.

This is highly curious. Lynn Margiotta was not the subject of a warrant. She was not considered a flight risk nor had she been recently extradited to this country. She presented no danger to anybody.

The investigation against her had gone on for nearly three years. Her solicitor had requested that she receive advance warning of any charge. Yet Ms Margiotta was being taken from her home to be charged on a Saturday morning without any notice.

The only court sittings on a Saturday are for emergency cases and most solicitors who would normally frequent the courts are not present. In such a milieu, Lynn and Tony Margiotta were brought to the Criminal Courts of Justice building and charged with seven offences of using a medical certificate as a “false instrument”.

The Irish Examiner understands that the DPP’s direction was that the matter could be dealt with summarily in the district court if guilty pleas were agreed. This is curious.

A guilty plea ensures a conviction, and also a lighter sentence than might be the case before a jury in the circuit court. It would be entirely possible, if not probable, that the defendants could avoid any prison sentence.

This would also ensure that offences were admitted. One outcome would be to justify the pursuit of the case by the gardaí. Another would be that the evidence would not be entered into in any detail as a trial would be avoided.

That a case involving a “lengthy investigation”, running into years, could be disposed in the district court is highly unusual.

The Margriottas chose to take their chances before a judge and jury of the circuit court. Another 21 months elapsed before the case was brought to trial.

The trial before the jury never advanced beyond the opening day before moving into the voir dire. Following that, the case collapsed and the Margiottas walked free.

The judge’s ruling that Lynn Margiottas’ privacy was violated in particularly curious.

She had a medical condition which she was entitled to keep private. If she had worked anywhere else the gardaí would have required either her consent or a warrant to access the records. But for some reason such avenues were bypassed because she was an employee of An Garda Síochána.

Whether her employment status had anything to do with the many curious features of this case would be a matter for the commissioner to explore.

If there had been a trial, much of this would have emerged in open court. Simply because a trial was avoided is no reason to ignore the curious features of the investigation and prosecution.

“I am flummoxed that it actually arrived in court,” Lynn Margiotta says.

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Lynn Margiotta has never been informed about any investigation or outcome to her complaint of bullying against the garda member, lodged less than three weeks before she was first arrested.