A Garda sergeant convicted of assaulting a member of the public has got a Supreme Court order overturning her proposed dismissal.
The seven judge court unanimously quashed the Garda Commissioner’s decision recommending the dismissal of Sgt Martha McEnery due to the Commissioner’s failure, at a particular stage of the relevant Garda disciplinary procedure, to give adequate reasons for proceeding with dismissal.
It is open to the Commissioner to reconsider the position of Sgt McEnery in accordance with the procedure under the regulations, the court added.
Sgt McEnery was 17 years in the force when then commissioner Martin Callinan's recommendation was made in 2013. She had received a four-month suspended sentence in 2011 after being convicted of assault during the arrest of Anthony Holness in Waterford in January 2010.
She previously lost an appeal against that conviction.
Arising out of the conviction, the commissioner held in 2013 that she breached the 2007 Garda Síochána Discipline Regulations and he issued a notice, under Regulation 39, recommending her dismissal.
Regulation 39 sets out a comprehensive process for dealing with alleged serious breaches of discipline by members of the force.
The notice stated the commissioner considered her “unit for retention” in the Garda and he had no doubt she had breached the 2007 regulations arising from the assault conviction.
Material facts
Sgt McEnery was given an opportunity to advance reasons against her proposed dismissal and, among various matters, argued other gardaí convicted of assault under the same provision were permitted to remain in the force.
It was also argued that the simple fact of her conviction could not be grounds for summary dismissal and the commissioner had failed to consider all the material facts and circumstances giving rise to the conviction.
When the commissioner refused in a March 25th, 2013, letter to alter his view on dismissal, she took judicial review proceedings.
The High Court rejected her challenge and she appealed to the Court of Appeal which allowed the appeal after finding the commissioner acted in breach of Regulation 39 in that he conflated two separate matters, the material facts and the relevant breach of discipline. The commissioner then appealed that decision to the Supreme Court.
On Tuesday, Ms Justice Mary Laffoy, giving the Supreme Court's unanimous judgment, agreed with the Court of Appeal that the commissioner's power of summary dismissal under Regulation 39 is an exceptional one which may only be used in very limited circumstances.
Having analysed the regulations and the relevant law, the judge held in favour of Ms McEnery, but on different grounds than the Court of Appeal, and dismissed the commissioner’s appeal.
Under the procedure invoked under section 39, the commissioner was required in his letter of March 25th March 2013, having considered Sgt McEnery’s submissions against his earlier decision recommending her dismissal, to, at that point in time, provide adequate reasons for deciding to proceed with dismissal, she ruled.
The judge said the commissioner was required, but failed, to give his reasons for concluding the breach of discipline – the assault offence of which she was convicted – was of such gravity it merited her dismissal; why a sanction imposed by any inquiry under the disciplinary regulations would not be different; and why she was unfit for retention in the force.
