McEnery v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 12 May 2016
• Neutral Citation: [2016] IESC 26
• Docket Number: [Appeal No: 71/2015],[S.C.No. 71 of 2015]
• Court: Supreme Court
• Date: 12 May 2016

[2016] IESC 26

THE SUPREME COURT

Clarke J.

[Appeal No: 71/2015]

Clarke J.

MacMenamin J.

Charleton J.

Between/

Martha McEnery

Applicant/Respondent

and

Commissioner of An Garda Síochána

Respondent/Appellant

Constitutional jurisdiction – Summary dismissal – Discrimination – Appellant seeking respondent?s summary dismissal – Whether grounds put forward by respondent for resisting appeal could be said to be before the Supreme Court in the light of the manner in which the respondent responded to the application for leave filed by the appellant

Facts: The respondent, Sgt McEnery, was convicted for assault contrary to s. 2 of the Non–Fatal Offences Against the Person Act 1997. She was then the subject of a summary dismissal by the appellant, the Commissioner of An Garda Síochána, under Regulation 39 of the Garda Síochána (Discipline) Regulations 2007. The respondent applied for judicial review of the appellant?s decision. A core issue in the proceedings was whether the Commissioner was entitled to summarily dismiss Sgt McEnery on the basis of that conviction together with what was alleged to be limited or little additional consideration. However, a further ground was canvassed arising from what was said to be the inadequacy of the reasons given by the Commissioner for the decision to summarily dismiss, together with a ground arising from what was argued to be discrimination in the implementation of the summary dismissal provision, given that other gardaí, it was said, who were the subject of similar convictions, were not dismissed. Her proceedings failed before the High Court ([2015] IEHC 545) but succeeded before the Court of Appeal?([2015] IECA 217). In that context, the Commissioner sought leave to appeal to the Supreme Court. The Court granted leave on the grounds set out in a determination of the 22nd January, 2016 ([2016] IESCDET 11). The matter was listed before Clarke J as a single judge for case management. In the course of the case management hearing, an issue arose as to whether certain grounds put forward on behalf of Sgt McEnery for resisting the appeal could properly be said to be before the Court in the light of the manner in which, in particular, Sgt McEnery responded to the application for leave filed on behalf of the Commissioner. Arrangements were made to have the issue listed for argument and decision before a panel of the Court. The relevant rules and para. 6 of the standard respondent?s notice required any respondent to an application for leave to set out additional grounds on which decision should be affirmed. That section of Sgt McEnery?s form in this case was filled in ?n/a?. Thus, the clear implication of that form was that it was not intended to put forward on behalf of Sgt McEnery any additional grounds, beyond those which found favour in the Court of Appeal, as to why Sgt McEnery should be entitled to succeed in the proceedings generally and to resist the Commissioner?s appeal to the Supreme Court. It was against that background that complaint was made on behalf of the Commissioner to the effect that it was said that Sgt McEnery sought to introduce additional grounds in written submissions.

Held by Clarke J that: (a) it was not necessary for Sgt McEnery to separately seek leave to appeal or to meet the constitutional threshold in respect of raising additional or alternative bases on which it was said that the judgment of the Court of Appeal ought to be affirmed; (b) the failure to specify such bases in the notice filed in accordance with O.58 of the Rules of the Superior Courts placed Sgt McEnery in a position where those matters were not properly before the Court; and (c) it followed that it would require the leave of the Court to allow those issues to be raised given that they had not properly been raised in the notice.

Clarke J held that, in light of the transitional stage at which the Court?s new procedures were being applied, the fact that all of the relevant points were properly before the Court of Appeal, and the fact that the points concerned were raised in a clear fashion in the initial written submissions filed on behalf of Sgt McEnery, the Court would give leave to allow those points to be relied on.

Appeal can proceed – leave granted to allow points.

Judgment of Mr. Justice Clarke delivered on the 12th May, 2016.

1. Introduction

1.1 The precise and detailed practical consequences for the conduct of appeals in this Court arising from the adoption of the 33rd Amendment to the Constitution, together with the various measures (statutory, rules of court and statutory practice directions) put in to provide for its implementation, have yet to be fully worked out. As has been pointed out in a number of determinations made by this Court in the context of applications for leave to appeal, the Court is necessarily in a transitional phase between its former jurisdiction and the new jurisdiction which will be fully in place when all, or almost all, of the appeals which were already in being prior to the 33rd Amendment coming into force have been disposed of. (See for example – Barlow & ors v. Minister for Agriculture, Food and Marine & ors [2015] IESCDET 8).

1.2 This judgment relates to one set of issues which arise in the context of the new constitutional jurisdiction of this Court. In these proceedings generally the applicant/respondent (?Sgt. McEnery?) seeks judicial review of a decision of the respondent/appellant (?the Commissioner?) to summarily dismiss her from An Garda Síochána. Her proceedings failed before the High Court ( McEnery v. Commissioner of An Garda Síochána [2015] IEHC 545 but succeeded before the Court of Appeal ( McEnery v. Commissioner of An Garda Síochána [2015] IECA 217). The Commissioner has already been given leave to appeal to this Court on the grounds set out in a determination of 22nd January, 2016 ( McEnery v Commissioner of An Garda Síochána [2016] IESCDET 11).

1.3 In the ordinary way, and in accordance with new Rules of Court and the Statutory Practice Direction issued by the Chief Justice, early written submissions were filed by both sides and the matter was listed before me as a single judge for case management. In the course of the case management hearing, an issue arose as to whether certain grounds put forward on behalf of Sgt. McEnery for resisting the appeal could properly be said to be before the Court in the light of the manner in which, in particular, Sgt. McEnery responded to the application for leave filed on behalf of the Commissioner. As the issue raised appeared to me to be one of some importance, arrangements were made to have the issue listed for argument and decision before a panel of the Court (rather than an individual judge dealing with a case management listing). In order properly to understand the issue, it is necessary to say a little about the relevant procedural history.

2. Procedural History

2.1 When Sgt. McEnery's application for judicial review was before the High Court, a range of grounds was initially relied on. Sgt. McEnery had been the subject of a summary dismissal by the Commissioner under Regulation 39 of the Garda Síochána (Discipline) Regulations 2007. That dismissal followed on from the conviction of Sgt. McEnery for assault contrary to s.2 of the Non-Fatal Offences Against the Person Act 1997. A core issue in the proceedings was whether the Commissioner was entitled to summarily dismiss Sgt. McEnery on the basis of that conviction together with what was alleged to be limited or little additional consideration. However, a further ground was canvassed arising from what was said to be the inadequacy of the reasons given by the Commissioner for the decision to summarily dismiss, together with a ground arising from what was argued to be discrimination in the implementation of the summary dismissal provision, given that other gardaí, it was said, who were the subject of similar convictions, were not dismissed. All grounds were rejected by the High Court.

2.2 Each of the issues to which reference has been made were raised on behalf of Sgt. McEnery in her appeal to the Court of Appeal. In delivering the judgment of that Court, Kelly J. noted, at para.30, that the discrimination point had been before the High Court. Likewise, reference is made to the reasons issue being before the High Court at para.31. It is clear from the judgment of Kelly J. that all of those issues were also before the Court of Appeal. However, the Court of Appeal was persuaded to allow the appeal on what I have described as the core issue, being the suggestion that the Commissioner treated the criminal conviction of Sgt. McEnery as being such that little or no further consideration was required in the making of a decision to summarily dismiss. This the Court of Appeal found to be impermissible. On the basis of having found in favour of Sgt. McEnery on that ground, the Court of Appeal did not find it necessary to deal with the other grounds which were before it.

2.3 In that context, the Commissioner sought leave to appeal to this Court. For the reasons set out in the determination to which reference has already been made, this Court granted leave on the grounds set out in Sgt. McEnery's notice of application. Those grounds, as set out at para.6 of the notice, were all concerned with the core issue. This is hardly surprising in that it was on that core issue that Sgt. McEnery's appeal had succeeded and the Commissioner had lost.

2.4 It is of particular importance to the questions which fall for decision on this appeal to note that the relevant rules and para. 6 of the standard respondent's notice (see O. 58, r.18 of the Rules of the Superior Courts and Appendix FF, no. 2 of O.58 of the rules) require any respondent to an application for leave to set out ?additional grounds on which decision should be affirmed?. That section of Sgt. McEnery's form in this case is...