McEnery v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 20 November 2014
• Neutral Citation: [2014] IEHC 545
• Court: High Court
• Date: 20 November 2014

[2014] IEHC 545

THE HIGH COURT

[No. 242JR/2013]

McEnery v Cmsr of An Garda Siochana

JUDICIAL REVIEW

BETWEEN

MARTHA McENERY

APPLICANT

AND

COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT

An Garda Siochána - Conviction for assault - Breach of discipline - Summary dismissal - Absence of reasons - Alleged breach of fair procedures - Whether Commissioner acted ultra vires - Reg. 39 Garda Síochána Discipline (Regulations) 2007 - Challenge to decision - Relief sought

Facts The applicant was a member of the An Garda Siochána. She was the rank of Sergeant. In 2011 she was convicted of assault against a member of the public causing harm contrary to s.2 of the Non-Fatal Offences against the Person Act 1997. She was sentenced to four months imprisonment, suspended for six months on the condition that she enter into an oral bond in the sum of €200 to keep the peace and to be of good behaviour for a period of six months. The conviction was upheld by the Court of Criminal Appeal. On 24 ^th December 2012 she was served a notice from the Commissioner of the An Garda Siochána pursuant to Regulation 39 of the Garda Síochána Discipline (Regulations) 2007. He proposed to summarily dismiss her, subject to the consent of the Minister for Justice and Equality, on grounds that he considered the applicant unfit for retention and invited her to submit reasons against the proposal. He considered her reasons yet decided not to alter his decision. The applicant argued the Commissioner had failed to provide her with adequate reasons to merit her dismissal. She alleged he had breached fair procedures and natural justice and claimed he had acted in an unreasonable and disproportionate manner in failing to have regard to the nature, circumstances and context of the breach. She said the Commissioner failed to distinguish her case from those of other members of the Garda with summary convictions who were spared the sanction of dismissal. Regulation 39 gives the Commissioner the power of dismissal without an inquiry where he considers the member concerned unfit for retention. The respondent argued he was in no doubt as to the material facts constituting the breach. He said the applicant was made fully aware of the facts upon which the decision to dismiss her was based and gave her the opportunity to make submissions opposing the decision; submissions to which he had due regard.

Held The judge indicated it was not for the courts to decide what amounts to conduct sufficient to warrant the summary dismissal of a Garda and that this was a matter solely for the Commissioner and the Minister. He reiterated Regulation 39 of the 2007 Regulations gives the Commissioner the power of dismissal without an inquiry if he considers the member unfit for retention. The Commissioner did in fact consider the applicant unfit for retention and was in no doubt as to the material facts constituting the breach of discipline involved. The applicant was invited to and did make submissions to the Commissioner. These were considered and taken into account by the Commissioner in reaching his decision. In such circumstances, his decision could not be said to fail the rationality test. The judge said the reasons given by the Commissioner were clearly set out in his notice of the 24th December 2012. The judge distinguished the case from Kelly v The Commissioners of An Garda Síochána [2013] IESC 47 as there was no material dispute of fact and the reasons for the dismissal were clearly and adequately set out in the decision of the Commissioner. There was no doubt as to the reason for his decision namely, the breach of discipline in the form of the conviction for assault. The Commissioner was satisfied the breach of discipline was of such gravity to merit dismissal of the applicant.

-Application for relief refused

1 JUDGMENT of Kearns P. delivered on the 20th day of November, 2014

2 In the present case the applicant seeks to challenge the decision of the Commissioner to summarily dismiss her from the Gardaí (subject to the consent of the Minister) by reason of her breach of discipline - namely conviction for the assault of a member of the public. The reliefs sought by the applicant are as follows: An order of certiorari quashing the decision of the respondent to dismiss the applicant, an injunction by way of an application for judicial review restraining the respondent from summarily dismissing the applicant pursuant to Regulation 39 of the Garda Síochána (Discipline) Regulations 2007 as amended, an order of prohibition restraining the respondent from dismissing the applicant at all pursuant to the Garda Síochána (Discipline) Regulations 2007, a Declaration that the respondent in deciding to dismiss the applicant pursuant to Regulation 39 of the 2007 Regulations acted ultra vires and/or in breach of natural and/or constitutional justice.

BACKGROUND

3 The relevant facts of the matter are not in dispute. The applicant is a member of An Garda Síochána of the rank of Sergeant. In early 2011, she was charged with assaulting a member of the public, one Anthony Holness, causing him harm contrary to s. 3 of the Non-Fatal Offences against the Person Act, 1997. The matter was sent forward for trial by jury to Waterford Circuit Criminal Court, the trial commencing on the 4 ^th July, 2011.

4 On the 8 ^th August, 2011, the applicant was acquitted of assault causing harm contrary to s. 3 of the Act but was convicted of assault contrary to section 2 of Act, the jury having heard all of the evidence and being satisfied beyond reasonable doubt of her guilt. She was sentenced to four months imprisonment, suspended for six months on the condition that she enter into an oral bond in the sum of €200 to keep the peace and to be of good behaviour for a period of six months.

5 The applicant appealed her conviction to the Court of Criminal Appeal. The conviction was upheld by the Court of Criminal Appeal.

6 On the 24 ^th December, 2012, the applicant was served with a notice pursuant to Regulation 39 of the Garda Síochána (Discipline) Regulations, 2007 as amended, which said notice contained accompanying documentation issued by the Commissioner of An Garda Síochána. Therein the Commissioner stated that he proposed to summarily dismiss the applicant, subject to the consent of the Minister for Justice and Equality, on the grounds that he considered the applicant unfit for retention in An Garda Síochána and he invited the applicant to advance reasons against the said proposed dismissal.

7 The grounds upon which the Commissioner relies is that the applicant committed a breach of discipline namely:

"Criminal Conduct that is to say conduct constituting an offence in respect of which at Waterford Circuit Court on the 8 ^th day of August 2011, (the applicant) was convicted of one count of assault contrary to the provisions of section 2 of the Non-Fatal Offences Against the Person Act 1997 and thereupon judgment was duly given on the 7 day of November, 2011 that (the Applicant) be sentenced to 4 months imprisonment suspended for 6 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 6 months and the oral bond having been entered by you in court on 7 ^th November, 2011."

8 The Commissioner stated in the Notice that he was not in any doubt as to the material facts on which the breach of discipline was based (including the result of the appeal to the Court of Criminal Appeal) and he had decided that the facts and the breach were of such gravity as to merit the applicant's dismissal and that holding an inquiry could not affect his decision.

9 On foot of the invitation to advance reasons against her dismissal, on the 20 February, 2013 the applicant made a submission to the Garda Commissioner as to the reasons why she should not be dismissed. Having considered her submission the Commissioner was satisfied he should not alter his decision that the conduct of the applicant merited her dismissal from the force and he decided to proceed to seek the requisite consent of the Minister for Justice and Equality to dismiss the applicant. This was communicated to the applicant by letter to her solicitors dated 25 ^th March, 2013.

THE REGULATIONS

10 Regulation 5 of the Garda Síochána Discipline (Regulations) 2007, as amended, provides that:

"Any act or conduct by a member which is mentioned in the Schedule constitutes a breach of discipline."

11 In the Schedule, at paragraph 17, the following is defined as constituting a breach of discipline:

"Criminal conduct, that is to say, conduct constituting an offence in respect of which there has been a conviction by a Court."

12 Regulation 39 of the Regulations sets out the summary dismissal procedure open to the Commissioner. Article 39(1) provides:

"Notwithstanding anything in these Regulations, and without prejudice to section 14(2), the Commissioner may, subject to this Regulation, dismiss from An Garda Síochána, any member (not being above the rank of Inspector) whom he or she considers unfit for retention in An Garda Síochána."

13 Regulation 39(2) sets out the limits of this power and provides inter alia:

"The power of dismissal conferred by this Regulation shall not be exercised except where:"

14 a a. The Commissioner is not in any doubt as to the material facts and the relevant breach of discipline is of such gravity that the Commissioner has decided that the facts and the breach merit dismissal and that the holding of an inquiry under these Regulations could not affect his or her decision in the matter."

15 Regulation 39(4) stipulates that the power of dismissal conferred by the Regulations shall not be exercised without the consent of the Minister for Justice and...