Convicted sergeant’s dismissal overturned

A Garda sergeant who was convicted of assault has won a Supreme Court order overturning the Garda Commissioner’s decision recommending her dismissal from the force.

The seven-judge court unanimously quashed the decision due to the commissioner’s failure, at a particular stage of the Garda disciplinary procedure, to give adequate reasons for proceeding with dismissal of Sgt Martha McEnery.

It is open to the commissioner to reconsider the position of Sgt McEnery in accordance with the procedure under the regulations, said the court.

Sgt McEnery, who was 17 years in the force when then commissioner Martin Callinan’s recommendation was made in 2013, received a four-month suspended sentence in 2011 after being convicted of assault during the arrest of a man in Waterford in January 2010. She had previously lost an appeal against that conviction.

Arising out of the conviction, the commissioner in 2013 held that she had breached 2007 Garda Síochána disciplinary 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 “unfit for retention” and he had no doubt she had breached the 2007 regulations.

Sgt McEnery was given an opportunity to advance reasons against her proposed dismissal and argued that 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, in a letter on March 25, 2013, refused to alter his view on dismissal, she took judicial review proceedings.

The High Court rejected her challenge. She appealed to the Court of Appeal which allowed it 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 appealed that decision to the Supreme Court.

Yesterday, 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 that may only be used in very limited circumstances.

The judge held in favour of Ms McEnery, but on different grounds than the Court of Appeal, and dismissed the commissioner’s appeal.

The judge said that, in his letter on March 25, 2013, the commissioner was required, but failed, to give his reasons for concluding that the breach of discipline 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.