McEnery v Garda Commissioner: Garda’s conviction for assault is not a self-evident reason for summary dismissal

In this judgment (here), the Supreme Court unanimously held that, for the purposes of Regulation 39 of the Garda Síochána (Discipline) Regulations 2007 (here), the fact that Garda Sergeant McEnery had been convicted of assault under s 2(1) of the Non-Fatal Offences Against the Person Act 1997 (here) was not a self-evident reason for the Commissioner to summarily dismiss her from the force. Natural and constitutional justice requires that the Commissioner give adequate reasons for decisions of that nature, which would enable the High Court to review the legality of such decisions.

Background

In 2011, Waterford Circuit Court convicted McEnery of assault contrary to s 2 of the 1997 Act. The trial judge sentenced her to four months imprisonment, suspended for six months. The Court of Criminal Appeal upheld that conviction.

Although McEnery had a clear disciplinary record otherwise and had received commendations on a number of occasions, the Garda Commissioner served her with notice of his intention to summarily dismiss her pursuant to Regulation 39 of the 2007 Regulations, on grounds that she was unfit for retention in the force. In accordance with Regulation 39, the Commissioner allowed McEnery the opportunity to submit reasons why she should not be dismissed.

McEnery submitted that other gardai had been convicted of assault but were allowed to remain in the force; that the Commissioner had not considered the full facts but had relied on the fact of conviction; and that if the Commissioner held an inquiry into her case, she could provide evidence that would affect the decision relating to her dismissal.

Subsequent to McEnery’s submission, the Commissioner informed her that he was not prepared to alter his decision and was proceeding to seek the Minister for Justice’s permission to dismiss her from the force.

McEnery issued judicial review proceedings seeking an order of certiorari quashing the Commissioner’s decision. She argued that the Circuit Court conviction did not absolve the Commissioner from conducting his own inquiry.

 

High Court

Kearns P (here) dismissed McEnery’s application. He held that, although summary dismissal power was unusual and exceptional, it is not for the courts to decide what behaviour warrants dismissal of a garda: that is a matter for the Commissioner and the Minister. McEnery appealed that decision to the Court of Appeal.

 

Court of Appeal

Overturning the High Court decision, the Court of Appeal (here) held that the plain wording of Regulation 39 require that the material facts and the breach of discipline both merit dismissal. The Supreme Court granted the Commissioner permission to appeal that decision (here).

 

Supreme Court

Laffoy J summarised the issues as:

(a) 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 is 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 is contended on behalf of Sgt. McEnery are material facts for the purpose of the proper application of Regulation 39(2)(a).

(b) 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 –

(i) the requirements of Regulation 39, or

(ii) the principles of natural and constitutional justice.

(c) Whether Sgt. McEnery has established that the decision of the Commissioner contravened natural and constitutional justice in treating Sgt. McEnery in a manner which is discriminatory and disproportionate in comparison to the treatment of other members of An Garda Síochána who have been convicted of assault.

On issue (a), Laffoy J rejected the Court of Appeal finding that the Commissioner must consider the material facts relating to the conviction and could not rely solely on the fact that McEnery was convicted of the offence. But she qualified that by stating:

it must not be overlooked that on an objective analysis of the gravity of the breach of discipline based on the nature of the offence which was the subject of the conviction, a relevant factor may be a comparison with the nature of a more or less serious offence of which the member might be charged and convicted or acquitted [44].

On issue (b), Laffoy J held that it would be utterly meaningless to provide a mechanism for an affected garda to make a submission if the Commissioner was not required to give consideration to any submission made and to give reasons for rejecting such submissions [62].

Allowing McEnery’s appeal, Laffoy J stated:

it cannot be said that the issue involved in this case is so self-evident and narrow that the mere fact of the decision discloses the reason. Accordingly, I consider that the decision of the Commissioner to dismiss Sgt. McEnery should be quashed on the ground of failure to give adequate reasons for the decision [65].

On issue (c), Laffoy J held that, on the facts presented, McEnery had not established that the Commissioner had treated her in a manner which was discriminatory in comparison to other cases.

 

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