Martha McEnery v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 16 October 2015
• Neutral Citation: [2015] IECA 217
• Court: Court of Appeal (Ireland)
• Date: 16 October 2015

[2015] IECA 217

THE COURT OF APPEAL

Kelly J

Finlay Geoghegan J.

Peart J.

29/2015

Martha McEnery v Commissioner of An Garda Síochána

Between

Martha McEnery

Appellant

And

The Commissioner of An Garda Síochána

Respondent

Breach of discipline – Criminal conduct – Dismissal – Appellant seeking certiorari of respondent”s decision to summarily dismiss her from her post as a sergeant in the Garda – Whether respondent was correct in law

Facts: The appellant, Ms McEnery, in 2011, together with three co-accused, all of whom were members of the Garda, stood trial at Waterford Circuit Criminal Court. The appellant was charged with causing harm to one Mr Holness contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. The appellant was acquitted of the s. 3 offence but was convicted of assault contrary to s. 2. The appellant was sentenced to four months imprisonment suspended for six months on condition that she enter into an oral bond in the sum of €200 to keep the peace and be of good behaviour for a period of six months. The appellant appealed against her conviction to the Court of Criminal Appeal. In 2012, the appeal was dismissed and the conviction upheld. Following this dismissal, the respondent, the Commissioner of An Garda Síochána, began fresh disciplinary proceedings. The respondent decided to summarily dismiss her (subject to the consent of the Minister for Justice) from her post as a sergeant in the Garda. In 2014, Kearns P refused to grant certiorari to the appellant of that decision. The appellant appealed against this decision to the Court of Appeal, contending that the respondent had conflated the breach of discipline and the facts upon which it is based thereby denying her the opportunity of having the facts or conduct which gave rise to the conviction taken into consideration.

Held by Kelly J that, having considered State (Jordan) v Commissioner of the Garda Síochána [1987] ILRM 107, the appellant was correct in contending that the certificate of conviction could not in and of itself amount to all the material facts. Kelly J was of the view that the respondent had indeed conflated two matters upon which he had to be satisfied under Regulation 39 of the Garda Síochána (Discipline) Regulations 2007. Kelly J held that the respondent must not be in any doubt as to the material facts and the relevant breach of discipline being of such gravity that the facts and breach merit summary dismissal; this requires him to consider not just the conviction (or criminal conduct) which constitutes the breach of discipline but also the material facts which may be extraneous to the actual breach but nevertheless material. Kelly J held that the respondent did not proceed in a lawful manner; by treating the material facts and the breach of discipline as one and the same he blinkered himself from a consideration of material facts. Kelly J held that this was in breach of the requirements of Regulation 39 and of the appellant”s right to have the material facts which gave rise to the breach of discipline fully considered.

Kelly J held that he would allow this appeal, ordering the respondent”s decision to dismiss the appellant from the Garda to be quashed.

Appeal allowed.

Introduction

1 1. This is an appeal from the judgment and order of Kearns P. dated the 20th November, 2014. He refused to grant certiorari to the appellant of a decision of the respondent to summarily dismiss her (subject to the consent of the Minister for Justice) from her post as a sergeant in the Garda.

Background

2 2. The appellant joined the Garda in July 1996. She was then 25 years old and was a university graduate. She was promoted to the rank of sergeant in 2008. She has a clear disciplinary record and in fact received commendations on a number of occasions during the course of her career in the police. The first of those was received while she was still on student placement in 1996. She is a single woman with no other means of livelihood apart from her Garda salary.

Criminal charges

3 3. In July 2011 the appellant together with three co-accused, all of whom were members of the Garda, stood trial at Waterford Circuit Criminal Court. The appellant (together with two of her co-accused) was charged with causing harm to one Anthony Holness contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. The third co-accused was charged with attempting to pervert the course of justice and with an offence contrary to s. 7(2) of the Criminal Law Act 1997, of carrying out acts with the intention of impeding the apprehension or prosecution of persons.

4 4. The trial took place before Her Honour Judge Reynolds and a jury. One of the appellant's co-accused was convicted of assaulting Mr. Holness contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. Another co-accused was acquitted of the same offence. The Garda charged with perverting the course of justice and the offence under s. 7(2) of the Criminal Law Act 1997, was convicted on both charges.

5 5. The appellant was acquitted of assault causing harm contrary to s. 3 of the 1997 Act, but was convicted of assault contrary to s. 2 of that Act.

6 6. Sentencing was postponed until November 2011. The appellant's coaccused who was convicted of the s. 3 offence was sentenced to three years imprisonment with eighteen months suspended. The co-accused convicted of perverting the course of justice was sentenced to two years imprisonment with twelve months suspended. The appellant was sentenced to four months imprisonment suspended for six months on condition that she enter into an oral bond in the sum of €200 to keep the peace and be of good behaviour for a period of six months.

7 7. On the 22nd November 2011, the appellant appealed against her conviction to the Court of Criminal Appeal. In October, 2012, the appeal was dismissed and the conviction upheld.

The first disciplinary proceedings

8 8. On the 20th November, 2011, two days prior to appealing against her conviction, the appellant was served with a notice issued pursuant to Regulation 39 of the Garda Síochána (Discipline) Regulations 2007, (the Regulations). That notice was signed by the Commissioner of the Garda and it stated that he intended to summarily dismiss the appellant, subject to ministerial consent, on the grounds that he considered her unfit for retention in the force.

9 9. That notice was responded to by the appellant's solicitor in which he pointed out that the appellant had appealed against her conviction and sentence and sought confirmation that the Commissioner would not proceed in the manner proposed in this notice pending a determination of her appeal. That request was refused and gave rise to judicial review proceedings. In those proceedings the Commissioner was enjoined from proceeding with the summary dismissal of the appellant pending the outcome of her appeal against her conviction and sentence.

The second disciplinary proceedings

10 10. Following the dismissal of the appellant's appeal by the Court of Criminal Appeal in October 2012, the respondent began fresh disciplinary proceedings.

11 11. On Christmas Eve 2012, the respondent issued a notice pursuant to Regulation 39 of the Regulations. This is what the notice said:

2 2 "1. I, Martin Callinan, Commissioner of An Garda Síochána, in accordance with Regulation 39 of the Garda Síochána (Discipline) Regulations, 2007 as amended, 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.

2 2. I am not in any doubt that you have committed the following breach of the Garda Síochána (Discipline) Regulations 2007:-

(a) Criminal conduct, that is to say, conduct constituting an offence in respect of which at Waterford Circuit Court on the 8th day of August, 2001, in front of Ms. Justice (sic) Reynolds, you were duly convicted of one count of assault contrary to the provisions of s. 2 of the Non Fatal Offences Against the Person Act 1997 and thereupon judgment was duly given on the 7th day of November, 2001 that you be sentenced to four months imprisonment suspended for six months on condition that you enter an oral bond in the sum of €200, to keep the peace and be of good behaviour for a period of six months and the oral bond having been entered by you in court on the 7th November, 2011. The said criminal conduct is a breach of discipline within the meaning of Regulation 5 of the Garda Síochána (Discipline) Regulations, 2007 as amended, and is described therein at reference No. 17 in the Schedule to the said Regulations.

3 3. I am not in any doubt as to the material facts on which the above breach of discipline is based and the following is a summary of the evidence of the said material facts:-

(a) Certificate of conviction dated 9th November, 2011, (copy attached) issued by the Court Registrar for the County of Waterford, certifying that at a Circuit Court held at Waterford on the 8th August, 2011, you Martha McEnery of 59 Charles Wood, Mount Oval, Rochestown in the County of Cork were duly convicted of one count of Assault contrary to the provisions of s. 2 of the Non Fatal Offences Against the Person Act, 1997. And thereupon judgment was duly given on the 7th November, 2011, that you be sentenced to four months imprisonment - suspend four month prison sentence for six months on condition you enter an oral bond in the sum of €200 to keep the peace and be of good behaviour for a period of six months.

(b) Notice of Result of Appeal dated 15th October, 2012, issued on behalf of Court Registrar from the Court of Criminal Appeal certifying that at the Court of...