The Court of Appeal has allowed Martha McEnery’s appeal and quashed the Commissioner of An Garda Síochána’s decision to dismiss her under a summary disciplinary procedure. The court said the Commissioner had treated her conviction as the material facts of the case, without considering other facts that could bear on the proposed dismissal.
The appeal concerned a decision made after McEnery’s conviction for assault contrary to section 2 of the Non-Fatal Offences Against the Person Act 1997. A jury had acquitted her of the more serious charge of assault causing harm. Her conviction appeal was dismissed in October 2012. She received a four-month prison sentence, suspended for six months, with a €200 bond condition.
The Commissioner proposed dismissal under Regulation 39 of the Garda Síochána (Discipline) Regulations 2007, subject to ministerial consent. The regulation permits summary dismissal in limited circumstances, including where the Commissioner is not in doubt about the material facts, considers the breach serious enough to merit dismissal, and decides an inquiry could not affect that decision.
In submissions to the Commissioner, McEnery accepted the conviction and that her conduct amounted to a breach of discipline warranting sanction. She argued that the Commissioner should consider the circumstances behind the conviction, her service and disciplinary record, personal circumstances, and whether a lesser sanction was appropriate. She said an inquiry could consider the trial evidence and mitigation without reopening the conviction.
The Commissioner declined to change his decision and proceeded to seek the Minister’s consent. The High Court refused McEnery’s application for judicial review. She appealed that decision to the Court of Appeal.
Giving judgment, Kelly J said the conviction certificate and notice that the appeal had been dismissed did not set out all the material facts. They gave no information about the nature or circumstances of the assault, or about the circumstances in which the jury acquitted McEnery of the more serious charge and convicted her of the lesser offence. The Commissioner had therefore conflated the breach of discipline with the facts relevant to deciding whether summary dismissal was justified.
The Court of Appeal allowed the appeal and ordered that the dismissal decision be quashed. The judgment says the order does not prevent the Commissioner from taking further lawful steps concerning McEnery under the regulations. It does not itself impose a different disciplinary sanction or determine what action may follow.