McEnery v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 15 November 2016
• Neutral Citation: [2016] IESC 66
• Court: Supreme Court
• Docket Number: [Appeal No. 71/2015]
• Date: 15 November 2016

BETWEEN

MARTHA McENERY

APPLICANT/RESPONDENT

AND

COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT/APPELLANT

[2016] IESC 66

Laffoy J.

Denham C.J.

O'Donnell J.

McKechnie J.

Clarke J.

Laffoy J.

Dunne J.

Charleton J.

[Appeal No. 71/2015]

THE SUPREME COURT

Judicial review– Dismissal– Assault– Respondent seeking an order of certiorari quashing a decision made by the appellant to summarily dismiss the respondent from An Garda Síochána– Whether the decision of the appellant contravened natural and constitutional justice

Facts: The respondent, Sgt. McEnery, brought judicial review proceedings against the appellant, the Commissioner of An Garda Síochána, in 2013 seeking an order of certiorari quashing a decision made by the Commissioner to summarily dismiss Sgt. McEnery from An Garda Síochána. The judicial review proceedings were heard in the High Court by Kearns P who delivered judgment on 20th November, 2014 ([2014] IEHC 545). Kearns P concluded that Sgt. McEnery’s application for relief must be refused. It was ordered that Sgt. McEnery pay the Commissioner’s costs (to include reserved costs) when taxed and ascertained. Sgt. McEnery appealed from the judgment and order of the High Court to the Court of Appeal. The judgment of the Court of Appeal was delivered by Kelly J. on 16th October, 2015 ([2015] IECA 217). In that judgment it was found that the Commissioner acted in breach of the requirements of Regulation 39 of the Garda Síochána (Discipline) Regulations, 2007 and on that basis the appeal was allowed. The decision of the Commissioner was thereby quashed. It was further ordered that the Commissioner pay the costs of Sgt. McEnery of the appeal and the costs in the High Court, the costs to be taxed in default of agreement. The Commissioner applied for leave to appeal the judgment and order of the Court of Appeal to the Supreme Court pursuant to Article 34.5.3o of the Constitution. By virtue of a determination of the Supreme Court dated 22nd January, 2016 ([2016] IESCDET 11), leave to appeal was granted.

Held by Laffoy J that, the breach of discipline relied on by the Commissioner being the criminal conduct constituting the offence under s. 2 of the Non-Fatal Offences Against the Person Act 1997 of which Sgt. McEnery was convicted, 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 that offence with the consequential imposition of the sentence on her by the Circuit Court. Accordingly, Laffoy J held that 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. Laffoy J held that 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, as set out in the letter of 25th March, 2013, the Commissioner acted contrary to his implied duty under Regulation 39 and in breach of the principles of natural and constitutional justice. Laffoy J held that accordingly that decision should be quashed. Laffoy J held that Sgt. McEnery had not established that the decision of the Commissioner contravened natural and constitutional justice in treating her in a manner which is discriminatory and disproportionate in comparison to the treatment of other members of An Garda Síochána convicted of assault.

Laffoy J held that there should be an order quashing the decision of the Commissioner as set out in the letter of 25th March, 2013 confirming the proposed decision to dismiss Sgt. McEnery from An Garda Síochána, as was held by the Court of Appeal, but on different grounds; the order quashing the decision was to be made on the grounds that no adequate reasons were given for that decision.

Appeal dismissed.

Judgment of Ms. Justice Laffoy delivered the 15th day of November, 2016

Procedural history

1 The judicial review proceedings in the High Court from which this appeal arises were brought by the respondent on this appeal (Sgt. McEnery) against the appellant on this appeal, the Commissioner of An Garda Síochána (the Commissioner), in 2013 seeking, inter alia, an order of certiorari by way of judicial review quashing a decision made by the Commissioner to summarily dismiss Sgt. McEnery 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 and she had occupied the rank of Sergeant for approximately five years. The decision of the Commissioner was expressed to be made pursuant to Regulation 39 of the Garda Síochána (Discipline) Regulations, 2007, as amended (the 2007 Regulations).

2 The judicial review proceedings were heard in the High Court by Kearns P. who delivered judgment on 20th November, 2014 ( [2014] IEHC 545). Kearns P., for the reasons set out in that judgment, came to the conclusion that Sgt. McEnery's application for relief must be refused. The order of the High Court giving effect to that judgment was an order dated 28th November, 2014, which was perfected on 23rd December, 2014. In the order, it was simply ordered that the Court refused the relief sought. Further, it was ordered that Sgt. McEnery pay the Commissioner's costs (to include reserved costs) when taxed and ascertained.

3 Sgt. McEnery appealed from the judgment and order of the High Court to the Court of Appeal. The judgment of the Court of Appeal (Kelly J., Finlay Geoghegan J. and Peart J.) was delivered by Kelly J. on 16th October, 2015 ( [2015] IECA 217). In that judgment it was found that the Commissioner acted in breach of the requirements of Regulation 39 and on that basis the appeal was allowed. The order of the Court of Appeal, which was dated 16th October, 2015 and perfected on 20th October, 2015, ordered that the appeal be allowed and the decision of the Commissioner was thereby quashed. It was further ordered that the Commissioner pay the costs of Sgt. McEnery of the appeal and the costs in the High Court, the costs to be taxed in default of agreement.

4 The Commissioner applied for leave to appeal the judgment and order of the Court of Appeal to this Court pursuant to Article 34.5.3o of the Constitution. By virtue of a determination of this Court dated 22nd January, 2016 ( [2016] IESCDET 11), leave to appeal was granted.

5 In the course of case management in this Court, it emerged that in the Respondent's Notice filed on behalf of Sgt. McEnery under Order 58, rule 18(1) of the Rules of the Superior Courts 1986, as amended, there was a failure to specify certain bases on which it was contended on behalf of Sgt. McEnery that the judgment of the Court of Appeal ought to be affirmed. The issue to which that gave rise was the subject of a separate hearing by a panel of this Court (Clarke J., MacMenamin J. and Charleton J.). Judgment was delivered by Clarke J. on 12th May, 2016 ( [2016] IESC 26). Leave was given to Sgt. McEnery to argue those bases on the appeal, particular regard being had to the transitional stage at which this Court's new constitutional regime was then and also the fact that all of the relevant points were properly before the Court of Appeal.

6 While the factual and procedural background which led to the Commissioner's decision to dismiss Sgt. McEnery summarily is comprehensively outlined in the judgments of the High Court and the Court of Appeal, it is necessary now to outline the essential features leading to that decision which are relevant to this appeal.

Background to decision

7 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 (the Act of 1997). She was tried along with co-accused in the Circuit Court in Waterford before a judge and jury in July 2011. On 8th August, 2011 she was acquitted of assault causing harm contrary to s. 3 of the Act of 1997 but she was convicted of one count of assault contrary to s. 2(1) of the Act of 1997. Subsequently, in November 2011 she was sentenced by the Circuit Court judge to a sentence of four months imprisonment, with provision that the four month prison sentence be suspended for six months on condition that she enter into a bond to keep the peace, which she did, and be of good behaviour for a period of six months.

8 Sgt. McEnery appealed against her conviction to the Court of Criminal Appeal in November 2011. By order of the Court of Criminal Appeal made on 15th October, 2012 the appeal against conviction was dismissed and it was recorded that the sentence appeal was not pursued. The four months of imprisonment imposed by the Circuit Court would have expired in early March 2012 and the six months conditional suspension period would have expired in early May 2012.

9 On 24th December, 2012 the Commissioner issued a notice pursuant to Regulation 39 of the 2007 Regulations (the Regulation 39 Notice) to Sgt. McEnery, which contained five paragraphs and which commenced by stating (in para. 1):

‘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.’

The Commissioner then stated (in para. 2):

‘I am not in any doubt that you have committed the following breach of the [2007 Regulations]:–

(a) Criminal Conduct, that is to say, conduct constituting an offence in respect of which at Waterford Circuit Court on the 8th day...