McEnery v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Denham C.J.,Laffoy J.,Charleton J.
• Judgment Date: 22 January 2016
• Neutral Citation: [2016] IESCDET 11
• Court: Supreme Court
• Date: 22 January 2016

[2016] IESCDET 11

An Chúirt Uachtarach

DETERMINATION

Denham C.J.

Laffoy J.

Charleton J.

Between:

Martha McEnery

RESPONDENT

AND

Commissioner of An Garda Síochána

APPLICANT

APPLICATION REFERRED TO IN ARTICLE 34.5.3° OF THE CONSTITUTION

RESULT: The Court makes an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 16th day of October 2015 by Kelly J, with Finlay Geoghegan and Peart JJ concurring; [2015] IECA 217 .

REASONS:

1 This determination concerns an application brought by the applicant, the Commissioner of An Garda Síochána, in which the applicant seeks a determination under Article 34.5.3° of the Constitution to allow an appeal to this Court from the decision of the Court of Appeal delivered on the 16th day of October 2015 by Kelly J, Finlay Geoghegan and Peart JJ concurring.

2 The applicant Commissioner of An Garda Síochána was the respondent in High Court proceedings entitled Martha McEnery v Commissioner of An Garda Síochána, High Court record number 2013/242JR. Those proceedings sought an order of certiorari quashing the decision of the Commissioner to dismiss the respondent from being an officer of An Garda Síochána. Kearns P considered the summary dismissal procedure as set out in Regulation 39 of the Garda Síochána (Discipline) Regulations, 2007 as having been validly exercised. The High Court held that: it is not for the courts to decide what amounts to conduct sufficient to warrant the summary dismissal of a garda - that is a matter solely for the Garda Commissioner and the Minister; that the Commissioner did in fact consider Martha McEnery unfit for retention in An Garda Síochána and was not in any doubt as to the material facts constituting the breach of discipline involved, namely criminal conduct in the form of an assault contrary to s.2 of the Non-Fatal Offences Against the Person Act 1997; and that while the existence of the summary dismissal power was unusual and exceptional, the necessity of such power was accepted in previous superior court decisions. Kearns P refused the reliefs sought and awarded costs to the Garda Commissioner. This decision was appealed by Martha McEnery to the Court of Appeal, wherein it was sought to reverse the decision of the High Court thereby obtaining summary judgment against the applicant.

3 In the judgment of the Court of Appeal of 16th October 2015, the Court of Appeal allowed the appeal and made an order quashing the decision of the Commissioner to dismiss the respondent herein. The key point raised by the applicant on her appeal to that court was that the summary dismissal was exclusively confined to the certificate of conviction. The applicant contended that the certificate of conviction cannot in and of itself amount to all the material facts. It was contended that this approach did not comply with the applicable law to dismissal of a serving garda. In delivering the Court of Appeal judgment, Kelly J upheld this argument, and ruled that the respondent had confused and conflated two quite separate matters – namely the material facts and the relevant breach of discipline. According to Kelly J, on the plain wording of Regulation 39, the Commissioner must not be in any doubt as to (i) the material facts and (ii) that the relevant breach of discipline is of such gravity that both ‘the facts and the breach merit dismissal’ before the power of summary dismissal could be exercised. The Court of Appeal was of the view that this requirement emphasises the distinction between the material facts and the breach of discipline.

4 Article 34 of the Constitution provides for the public administration of justice;...