Supreme Court: Garda Commissioner must reconsider the dismissal of Sergeant convicted of assault

About this case:

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In 2013 Sergeant Martha McEnery began proceedings against the Commissioner of An Garda Síochána, seeking, inter alia, an order of certiorari by way of judicial review quashing a decision made by the Commissioner to summarily dismiss her from An Garda Síochána.

At the time the decision was made, Sgt McEnery had been a member of An Garda Síochána for in excess of seventeen years, occupying the rank of Sergeant for approximately five years.

Background to decision

In 2011 Sgt McEnery was charged with assaulting a member of the public causing him harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. She was acquitted of assault causing harm contrary to s. 3 of the 1997 Act, but she was convicted of one count of assault contrary to s. 2(1) of the 1997 Act.

Subsequently, she was sentenced by the Circuit Court judge to a sentence of four months imprisonment, suspended for six months. Sgt McEnery’s appeal against her conviction was dismissed.

Following her conviction, on 24th December 2012 the Commissioner issued a notice pursuant to Regulation 39 of the Garda Síochána (Discipline) Regulations 2007 to Sgt McEnery, which stated:

“I, Martin Callinan, Commissioner of An Garda Síochána, … hereby give you notice that I propose, subject to the consent of the Minister for Justice and Equality, to dismiss you from An Garda Síochána on the grounds that I consider you unfit for retention in An Garda Síochána.”

Judicial review proceedings

Challenging the notice in the High Court, Sgt McEnery claimed that the decision of the Commissioner should be quashed because he failed to give adequate reasons for his decision.

Sgt McEnery also claimed that “she was aware of other members of An Garda Síochána having in the past been acquitted of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 and, like her, having been convicted of assault simpliciter contrary to s. 2 of the same Act were not in fact dismissed”

The High Court rejected her challenge, with President Kearns finding that there could be “no doubt as to the reason for decision, namely, the breach of discipline in the form of the conviction for assault”.

Sgt McEnery’s appeal to the Court of Appeal was allowed after a finding that the Commissioner “confused and conflated two quite separate matters, namely the material facts and the relevant breach of discipline”. Justice Kelly stated that this meant the Commissioner had “blinkered himself from a consideration of material facts. That was in breach of the requirements of Regulation 39 and of right to have the material facts which gave rise to the breach of discipline fully considered”.

The Supreme Court

Firstly, the Court had to consider whether the decision of the Commissioner as proposed in the Regulation 39 Notice of 24th December, 2012 and confirmed in the letter of 25th March, 2013 was ultra vires Regulation 39 by being in breach of the requirements of Regulation 39(2)(a) by reason of the reliance by the Commissioner solely on the conviction of Sgt McEnery in the Circuit Court and the sentence imposed on her as material to the breach of discipline and of the failure of the Commissioner to consider any other facts which it was contended on behalf of Sgt McEnery were material facts for the purpose of the proper application of Regulation 39(2)(a).

Justice Laffoy found that the only material facts for the purposes of the proper application of Regulation 39(2)(a) of the 2007 Regulations were the facts of the conviction of Sgt McEnery of her offence under s. 2 of the 1997 Act. Accordingly, the decision of the Commissioner was not ultra vires Regulation 39 by the reliance by the Commissioner solely on those facts for the purpose of complying with the requirement of Regulation 39(2)(a) that he should not be in doubt as to the material facts and for the purpose of assessing whether the facts and the breach of discipline were of such gravity as to merit dismissal.

Secondly, the Court considered whether the decision of the Commissioner should be quashed on the ground that the Commissioner failed to give adequate reasons for his decision in accordance with either; the requirements of Regulation 39, or the principles of natural and constitutional justice.

According to Justice Laffoy, “by failing to give adequate reasons for his decision to confirm the proposed decision to dismiss Sgt McEnery from An Garda Síochána following receipt of the submissions made on her behalf, the Commissioner acted contrary to his implied duty under Regulation 39 and in breach of the principles of natural and constitutional justice” and that decision should be quashed.

Finally, in judging whether Sgt McEnery established that the decision of the Commissioner contravened natural and constitutional justice in treating Sgt McEnery in a discriminatory manner and disproportionate in comparison to the treatment of other members of An Garda Síochána convicted of assault – Justice Laffoy concluded that Sgt McEnery had not established this ground of appeal.

Order

Justice Laffoy made an order quashing the decision of the Commissioner, on the grounds that no adequate reasons were given for that decision.