Last October, Sgt Martha McEnery won a Court of Appeal challenge against the Commissioner’s decision to dismiss her from the force.
Sgt McEnery was dismissed because she was given a four-month suspended sentence in 2011, following her conviction for assault during the arrest of Anthony Holness, in Waterford, in January, 2010.
Following her conviction, the commissioner found she had breached the 2007 Garda Siochana Discipline Regulations and summarily dismissed her.
Sgt McEnery had challenged that decision to the High Court, and had argued that a criminal conviction could not constitute grounds for summary dismissal.
She claimed her treatment was discriminatory, or disproportionate compared to any other case, and that other gardaí convicted of assault had not not dismissed. She also claimed the commissioner failed to give adequate reasons for the decision. The High Court dismissed her challenge, which she appealed.
The Court of Appeal then ruled that the commissioner had not acted lawfully, within the regulations, in dismissing Sgt McEnery, without giving separate consideration to the facts surrounding her breach of discipline.
The appeal court allowed Sgt McEnery’s appeal, because the commissioner had treated her criminal conviction as being such that little or no further consideration was required in dismissing her.
In advance of the appeal being heard by the Supreme Court, an issue had arisen. The commissioner argued, before the Supreme Court, that Sgt McEnery had not stated any additional grounds as part of her case, in documents submitted to the Supreme Court which had later been included in written submissions.
In a written ruling on a preliminary point, Mr Justice Clarke, sitting with Mr Justice John Mac Menamin and Mr Justice Peter Charleton, granted Sgt McEnery permission to rely on additional grounds in the appeal.
The judge said the points concerned had been properly before the Court of Appeal and submissions had been made at an early stage in the Supreme Court.
However, “it should not be presumed that similar latitude will continue to be given in the future”, said Mr Justice Clarke.
He said that, following recent changes to the Constitution, the court was still in a transitional phase, between its former and its new jurisdiction. “The precise and detailed practical consequences for the conduct of appeals in the Supreme Court have yet to be fully worked out,” he said.