Departmentneedstochangethe wayitconductsinterviews- Judge
FOLLOWING NOT GUILTY VERDICT IN TRIAL OF A SOCIAL WELFARE OFFICIAL ACCUSED OF ASKING A WOMAN FOR ORAL SEX JUDGE SAYS INTERVIEWS SHOULD BE
A Circuit Court Judge has said the Department of Social Protection should change the way it conducts interviews with the public as a matter of urgency.
He made the remarks when acceding to a defence application to direct a jury to find a senior social welfare official not guilty of a charge of coercion on the third day of his trial at Sligo Circuit Court.
The official, Andrew Gilmartin of Drumfad, Grange had pleaded not guilty to wrongfully and without lawful authority intimidate Martha Rooney with a view to compelling her to do an act which she had a lawful right to abstain from doing, namely engage in oral sex with him at the Department offices at Cranmore on April 9th 2014.
At the conclusion of the prosecution case on the second day of the trial, Mr Gary Staines BL, instructed by Mr Michael Staines, solicitors, made an application to have the charge dismissed.
In giving his judgement, Judge Keenan Johnson said there was an important lesson from the case - the need to change the way in which interviews were conducted at the Department.
“It is no longer feasible or acceptable in this day and age to adopt, what accordingto both the evidence of Mr Gilmartin and his supererior Mr O’Dwyer appears to have been the standard practice of locking the doors to interview rooms when interviews were being conducted which involve different genders.
“The locking of the doors duing interviews, where no CCTV cameras are present, leaves both the interviewer and the interviewee vulnerable to false accusations. I can understand that the reason for locking the doors was to preserve the privacy of the interview.
“However, I believe this goal can be achieved by having a rotating sign on the door with the alternate notifications of occupied/ unoccupied.
“The provision of CCTV cameras in the interview room which cannot record sound, would ensure the requisite transparency, that would avoid false allegations being made of impropriety on the part of either the interviewer or the interviewee.
“I believe these are suggestions that the Department should adopt, if it has not already done so as a matter of urgency,” he said.
Earlier the Judge recalled the evidence of the Ms Rooney who had gone to the Department offices after she received a letter advising her that it was aware she had continued to draw Lone Parent’s Allowance while working in the Southern Hotel.
She was interviewed by the accused and both doors in the interview were locked in order to preserve privacy.
Ms Rooney said Mr Gilmartin was agitated and annoyed with her when she disclosed she was working in the Southern Hotel and had also been attending the National Learning Network.
She said the accused offered to help her but that she would have to keep this assistance between them and that he said he’d have to pull a lot of strings to get her out of trouble.
She alleged he asked her then what was she going to do fo him. She said she focussed on a spot and ignored him. Ms Rooney said he got up and down and became angry and again asked her what she was going to do to him.
She then alleged that the accused said: “Here’s what’s going to happen, you’re going to give me a b***** b.”
Ms Rooney said she replied, ‘ I am not’ and with that she unlocked the door and left and while doing so told the accused she had recorded the interview, when in fact this was not the case.
The Judge noted that the accused’s statement was entered as evidence and he denied he requested oral sex from Ms Rooney. He acknowledged he behaved in an unprofessional manner in that he used bad language in his dealings with her.
Judge Johnson said the accused was charged with the offence of coercion which he said was unusual which was evidenced by the dearth of case law in the area.
Both the prosecution and defence were unable to unearth any cases where a prosecution for this offence had been taken.
The Judge said it was clear from the evidence that there is no assertion on the part of the prosecution that the accused used violence towards Ms Rooney.
Accordingly, for the State’s case to to to the jury there must be evidence that the actions of the accused as recounted by Ms Rooney could amount to intimidation.
“It is clear tht Ms Rooney, while greatly distressed by the alleged proposition from the accused, did not act on the proposition. On her own evidence she immediately left the office after the proposition was made,” said Judge Johnson.
The only legal definition of intimidation appeared in the Criminal Justice Act 1999 which related to witnesses and the Oxford Dictionary definition was to “frighten or overawe.”
“Having carefully reviewed the evidence of Ms Rooney, at no stage did she indicate that she was frightened by what was allegedly suggested by the accused nor did she indicate that she was overawed by it.
“It is clear from her evidence that she alleges that she was upset and distressed and it could be argued that because Ms Rooney was distressed, this implied that she was frightened.
“In order to come to this conclusion, the jury would have to infer that she was frightened and overawed from the finding of fact that she was distressed by the incident.
“I don’t believe that in this case the jury would be entitled to infer that because Ms Rooney was allegedly distressed she was therefore frightened and overawed.
“Indeed, the evidence in this case shows that immediately after the incident, Ms Rooney had the presence of mind to unlock the door, advise Mr Gilmartin that she had taped the interview, even though this was not in fact the position and then to the leave the room immediately.
“These are hardly the actions of a person who was frightened or overawed.
“Accordingly, taking into account the principles in the Galbraith decision, I am satisfied that the prosecution case, taken at its height does not disclose the offence of coercion as it does not disclose that the actions of the accused as alleged by Ms Rooney come within the definition of intimidates as set out in the section and that a properly chargd jury could not return a verdict of guilty. Accordingly,. for these reasons I am going to accede to the application of Mr Staines and I am going to direct the jury to return a verdict of not guilty.
“I am also of the view that given the conflict in the evi- dence of Ms Rooney and Mr Gilmartin and the inconsistencies in Ms Rooney’s evidence, her admission of having previously been economic with the truth when filling up her Lone Parent application form, together with the absence of any independent corroboration, that taking these matters cumulatively a properly charged jury could not but have a reasonable doubt about the guilt of the accused and would therefore have to return a verdict of not guilty and again for that reason and pursuant to the principles of Galbraith I would be duty bound to take the case from the jury and direct them to return a not guilty verdict<” said Judge Johnson.
He said he wanted to make it abundantly clear he was not making any findings in relation to the veracity of either Ms Rooney or Mr Gilmartin. He was merely undertaking his judicial function which was to interpret the law.
Judge Johnson said he wasn’t condoning the alleged actions of the accused.
“If one were to accept Msw Rooney’s evidence as being true, and again I emphasise that I am making no dterminatiion on this, then it is fair to say the alleged actions of Mr Gilmartin were reprehensible and an affront to decency and civilised society. However, that categorisation doesn’t necessarily make his alleged actions a criminal offence,” said the Judge.
He noted that Ms Rooeny had additional avenues open to her in respect of Mr Gilmartin’s behaviour. She could have made a complaint to his employers but she didn’t. A year after the incident she instructed a solicitor to make a claim for damages and falsely alleged sexual assault and false imprisonment.
These false allegations couldn’t but negatively impact on her credibility, he said, adding that in general, solicitors only acted on the specific information given by their clients.
The Judge added the accused showed a serious lack of judgement and respect in using bad language when dealing with Ms Rooney.
Judge Johnson added that he had no doubt but the experience has taught Mr Gilmartin the importance of showing respect to clients.