High Court dismisses judicial review against Garda dismissal for assault conviction due to adequate reasons provided.

Neutral Citation: [2014] IEHC 545

THE HIGH COURT

JUDICIAL REVIEW

[2013 No. 242JR]

BETWEEN

MARTHA McENERY

APPLICANT

AND

COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT

JUDGMENT of Kearns P. delivered on the 20th day of November, 2014

In the present case the applicant seeks to challenge the decision of the Commissioner to summarily dismiss her from the Gardaí

(subject to the consent of the Minister) by reason of her breach of discipline - namely conviction for the assault of a member of the

public. The reliefs sought by the applicant are as follows: An order of certiorari quashing the decision of the respondent to dismiss

the applicant, an injunction by way of an application for judicial review restraining the respondent from summarily dismissing the

applicant pursuant to Regulation 39 of the Garda Síochána (Discipline) Regulations 2007 as amended, an order of prohibition

restraining the respondent from dismissing the applicant at all pursuant to the Garda Síochána (Discipline) Regulations 2007, a

Declaration that the respondent in deciding to dismiss the applicant pursuant to Regulation 39 of the 2007 Regulations acted ultra

vires and/or in breach of natural and/or constitutional justice.

BACKGROUND

The relevant facts of the matter are not in dispute. The applicant is a member of An Garda Síochána of the rank of Sergeant. In early

2011, she was charged with assaulting a member of the public, one Anthony Holness, causing him harm contrary to s. 3 of the Non-

Fatal Offences against the Person Act, 1997. The matter was sent forward for trial by jury to Waterford Circuit Criminal Court, the

trial commencing on the 4th July, 2011.

On the 8th August, 2011, the applicant was acquitted of assault causing harm contrary to s. 3 of the Act but was convicted of

assault contrary to section 2 of Act, the jury having heard all of the evidence and being satisfied beyond reasonable doubt of her

guilt. She was sentenced to four months imprisonment, suspended for six months on the condition that she enter into an oral bond in

the sum of €200 to keep the peace and to be of good behaviour for a period of six months.

The applicant appealed her conviction to the Court of Criminal Appeal. The conviction was upheld by the Court of Criminal Appeal.

On the 24th December, 2012, the applicant was served with a notice pursuant to Regulation 39 of the Garda Síochána (Discipline)

Regulations, 2007 as amended, which said notice contained accompanying documentation issued by the Commissioner of An Garda

Síochána. Therein the Commissioner stated that he proposed to summarily dismiss the applicant, subject to the consent of the

Minister for Justice and Equality, on the grounds that he considered the applicant unfit for retention in An Garda Síochána and he

invited the applicant to advance reasons against the said proposed dismissal.

The grounds upon which the Commissioner relies is that the applicant committed a breach of discipline namely:

“Criminal Conduct that is to say conduct constituting an offence in respect of which at Waterford Circuit Court on the 8th

day of August 2011, (the applicant) was convicted of one count of assault contrary to the provisions of section 2 of the

Non-Fatal Offences Against the Person Act 1997 and thereupon judgment was duly given on the 7th day of November,

2011 that (the Applicant) be sentenced to 4 months imprisonment suspended for 6 months on condition that you enter an

oral bond in the sum of €200 to keep the peace and be of good behaviour for a period of 6 months and the oral bond

having been entered by you in court on 7th November, 2011.”

The Commissioner stated in the Notice that he was not in any doubt as to the material facts on which the breach of discipline was

based (including the result of the appeal to the Court of Criminal Appeal) and he had decided that the facts and the breach were of

such gravity as to merit the applicant's dismissal and that holding an inquiry could not affect his decision.

On foot of the invitation to advance reasons against her dismissal, on the 20th February, 2013 the applicant made a submission to

the Garda Commissioner as to the reasons why she should not be dismissed. Having considered her submission the Commissioner was

satisfied he should not alter his decision that the conduct of the applicant merited her dismissal from the force and he decided to

proceed to seek the requisite consent of the Minister for Justice and Equality to dismiss the applicant. This was communicated to the

applicant by letter to her solicitors dated 25th March, 2013.

THE REGULATIONS

Regulation 5 of the Garda Síochána Discipline (Regulations) 2007, as amended, provides that:

“Any act or conduct by a member which is mentioned in the Schedule constitutes a breach of discipline.”

In the Schedule, at paragraph 17, the following is defined as constituting a breach of discipline:

“Criminal conduct, that is to say, conduct constituting an offence in respect of which there has been a conviction by a

Court.”

Regulation 39 of the Regulations sets out the summary dismissal procedure open to the Commissioner. Article 39(1) provides:

“Notwithstanding anything in these Regulations, and without prejudice to section 14(2), the Commissioner may, subject to

this Regulation, dismiss from An Garda Síochána, any member (not being above the rank of Inspector) whom he or she

considers unfit for retention in An Garda Síochána.”

Regulation 39(2) sets out the limits of this power and provides inter alia:

“The power of dismissal conferred by this Regulation shall not be exercised except where:

a. The Commissioner is not in any doubt as to the material facts and the relevant breach of discipline is of such gravity

that the Commissioner has decided that the facts and the breach merit dismissal and that the holding of an inquiry under

these Regulations could not affect his or her decision in the matter.”

Regulation 39(4) stipulates that the power of dismissal conferred by the Regulations shall not be exercised without the consent of the

Minister for Justice and Equality and without the member concerned being informed of the material facts and the relevant breach of

discipline and without the member being given an opportunity of submitting to the Commissioner reasons against the proposed

dismissal. This provision was availed of and the applicant’s submissions were considered by the Commissioner.

THE APPLICANT’S CASE

The applicant’s case is a straightforward one. Counsel on behalf of the applicant submits that, notwithstanding the terms of the

Garda Síochána (Discipline) Regulations 2007, the simple fact of a criminal conviction in the absence of other reasons cannot

constitute grounds for summary dismissal and the fact of such a conviction does not absolve the respondent from conducting his own

inquiry into the conduct of the applicant. Ancillary to this submission is the further contention that the respondent failed to provide

the applicant with adequate or sufficient reasons apart from the certificate of conviction for his decision to seek the requisite consent

from the Minister for Justice and Equality to summarily dismiss the applicant from An Garda Síochána, and such failure is a breach of

fair procedures and natural justice. In this regard counsel for the applicant placed reliance on decisions of the Supreme Court in Mallak

v. Minister for Justice, Equality & Law Reform [2012] IESC 59, and in Rawson v. Minister for Defence [2012] IESC 26.

It is further argued that the respondent acted in an unreasonable and disproportionate manner in failing to have regard to the nature,

circumstances and context of the applicant’s breach of discipline. It is also suggested that the respondent failed to provide any basis

for distinguishing the applicant’s case from those of other members of An Garda Síochána with summary convictions who were spared

the ultimate sanction of dismissal.

THE RESPONDENT’S CASE

On behalf of the respondent it was submitted that Regulation 39 of the 2007 Regulations gives the Commissioner the power of

dismissal without an inquiry where he considers the member concerned to be unfit for retention in An Garda Síochána and where he is

not “in any doubt as to the material facts and the relevant breach of discipline is of such gravity that the Commissioner has decided

that the facts and the breach merit dismissal and that the holding of an inquiry under these regulations could not affect his or her

decision in the matter”.

The respondent submitted that the instant case fits precisely within the four walls of the statutory provision. It was argued that the

applicant cannot re-open the fact of her conviction or the outcome of her appeal. There could be no doubt as to the material facts

constituting the breach of discipline involved, namely, criminal conduct in the form of assault contrary to s.2 of the Non-Fatal

Offences Against the Person Act 1997. The applicant was and is fully aware of the indisputable facts upon which the decision to

dismiss her was based and the reason for that decision -namely her conviction by a jury for assault - which was upheld on appeal by

the Court of Criminal Appeal. Further, the applicant was given an opportunity to make submissions to the Commissioner on his

decision. The Commissioner had due regard to those submissions. In the circumstances there was no substance in any contention

that there had been a want of fair procedures.

Insofar as it was asserted that the respondents’ decision had not been accompanied by adequate reasons, this was uniquely a case

where the applicant was fully aware of the reason for her dismissal. The obligation to give reasons must be seen in context. Here

there was no material dispute of fact or ‘tangled web of facts’ to be unravelled and the reasons for the dismissal are clear and

adequately set out in the decision of the Commissioner.

DISCUSSION

In a number of cases it has been pointed out that it is not for the courts to decide what amounts to conduct sufficient to warrant

the summary dismissal of a garda. Rather this is a matter solely for the Garda Commissioner and the Minister. Thus in Galvin v. The

Commissioner of An Garda Síochána & Ors. [2011] IEHC 486, Hedigan J. sated:-

“It is not for this court to say what amounts to conduct sufficient to warrant dismissal on the basis that retention would

undermine public confidence in the force. That is a matter for the Garda Commissioner and the Government on consent.”

Similarly in Stroker v. Doherty [1991] 1 I.R. 23, McCarthy J., delivering the majority decision of the Supreme Court and referring to

the disciplinary regulations then in force stated:-

“It is pursuant to those regulations that the charges under consideration were brought. The consideration of such matter

as to whether or not a particular incident amounts to conduct prejudicial to discipline or likely to bring discredit on the

force is peculiarly appropriate for determination by the gardaí themselves; so also is the assessment of the penalty

appropriate to any such breach or breaches. In the regulation and enforcement of discipline where a decision depends

upon the assessment made by the Commissioner or by an appeal board, in my view, the courts should be reluctant to

interfere.”

That the Commissioner has the necessary vires to make such a decision is beyond doubt. Regulation 39 of the 2007 Regulations give

to the Commissioner the power of dismissal without an enquiry (i.e., summary dismissal) where he considers the member concerned

“unfit for retention in An Garda Síochána” and he/she is not “in any doubt as to the material facts and the relevant breach of

discipline is of such gravity that the Commissioner has decided that the facts in the breach merit dismissal and that the holding of an

enquiry under these regulations could not affect his or her decision in the matter”.

In the instant case the applicant cannot reopen the fact of her conviction which, it should be noted, was the subject matter of an

unsuccessful appeal to the Court of Criminal Appeal. As is clear from the notice from the Commissioner dated the 24th December,

2012, he did in fact consider the applicant unfit for retention in An Garda Síochána and was not in any doubt as to the material facts

constituting the breach of discipline involved, namely, criminal conduct in the form of an assault contrary to s. 2 of the Non-Fatal

Offences Against the Person Act 1997.

As long ago as 1987 it had been acknowledged that while the existence of such a summary power of dismissal was “unusual and

exceptional” (see State (Jordan) v. Commissioner of An Garda Síochána [1987] ILRM 107) the necessity for such a power was

highlighted in the judgment delivered by O’Hanlon J. in that case when he stated:-

“I am of opinion that special considerations apply in relation to the power the State to dispense with the services of

members of the armed forces, of the Garda Síochána, and of the Prison Service because it is a vital concern to the

community as a whole that the members of these services should be completely trustworthy. For this reason, I take the

view that it was permissible to confer on the Commissioner of An Garda Síochána the exceptional powers contained in

Regulation 34 of the Discipline Regulations, 1971, but I also accept the contention of counsel for the prosecutor that the

scope for making use of these powers must be very limited in character.”

A conviction of assault on a member of the public would certainly appear to fall within the limited category of cases where the

exercise of such a power is warranted.

However, the main ground of complaint raised by the applicant is that the Commissioner acted in breach of fair procedures and

constitutional justice in that he relied solely on the fact of conviction and failed to have regard to any other considerations, including

the possibility of a lesser sanction than dismissal. The applicant had also claimed she was aware of other members of An Garda

Síochána having in the past been acquitted of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person

Act 1997 and, like her, having been convicted of assault simpliciter contrary to s. 2 of the same Act who were not in fact dismissed.

The discovery in this case shows that in the last five years there were four gardaí, including the applicant, convicted of assault as

follows:-

(i) one member, Garda F. was convicted of s. 3 assault in May 2011 and resigned from An Garda Síochána,

(ii) another member, Garda H., was convicted of s. 3 assault in August 2011. He was sentenced to three years

imprisonment with eighteen months suspended. He resigned from An Garda Síochána.

(iii) Another member, Garda M., was convicted of s. 2 assault in March 2013 and was sentenced to a three month

custodial sentence. This conviction and sentence are under appeal and are also subject to an investigation pursuant to s.

102(4) of the Garda Síochána Act 2005 and no decision has been taken in relation to disciplinary action as yet in that

case.

(iv) The applicant herein.

Thus the Court is not satisfied that the applicant has made out any factual basis for holding that her treatment has been

discriminatory or disproportionate in comparison with any other case.

Insofar as the imposition of some lesser penalty is concerned, it remains the fact in the instant case that the applicant was invited to

and did make submissions to the Commissioner which submissions were considered and taken into account by the Commissioner in

reaching the decision which he did in this case. In such circumstances, his decision cannot be said to fail a rationality test as the

same is understood in the context of judicial review.

The applicant also claims that the decision of the Commissioner should be quashed because he failed to give adequate reasons for his

decision.

However, the reasons given by the Commissioner are clearly set out in his notice of the 24th December, 2012. That notice states

that the Commissioner proposed to dismiss the applicant from the force on the grounds that he considered her unfit for retention in

An Garda Síochána and he was not in any doubt that he had committed the breach of discipline or in any doubt about the material

facts on which the breach of discipline was based. Thereafter by letter dated the 25th March, 2013 the Commissioner, having

considered the submissions put forward by the applicant against her dismissal, indicated that he was not prepared to alter his decision

that her conduct merited dismissal in accordance with Regulation 39 of the Regulations.

The Court accepts that decision- makers must achieve fairness in the process by giving adequate reasons such as to leave the party

affected in no doubt as to the considerations underpinning the decision. This was emphasised in the two Supreme Court decisions

relied upon by the applicant. However, the extent of the obligation to give reasons must be seen in context.

Thus in EMI Records (Ireland) Ltd. v. The Data Protection Commissioner [2013[ IESC 34, the Supreme Court had to consider a case

which involved an enforcement notice where the Act specified that the respondent must provide details of the alleged breach. This

was not a purely factual dispute. In that case, Clarke J. specified the three questions to be asked in a “reasons” case as follows:-

“6.11 It follows that in reasons cases there may well be three questions raised: 1. Do reasons have to be given and if so

what type of reasons; 2. Where can the reasons be found, and by reference to what evidence or materials can the court

objectively ascertain the reasons; 3. When the reasons given, if any, have been ascertained, are those reasons sufficient

to meet the requirements established in the case law?”

At para. 7.3 of his judgment, Clarke J. further noted:-

“In addition, it may be that in other situations there could be cases where the necessary reasons are obvious from the

process leading up to the issuance of a relevant decision.”

This point was developed further at para. 7.4 of his judgment where he stated:-

“As pointed out, it may well be obvious to the parties involved in an adversarial process as to what the reasons for the

decision of an adjudicator were in the light of the case made to that adjudicator and the adjudicator’s decision. However,

where a legally binding measure is sought to be put in place which affects parties beyond those who are part of the

process leading to the adoption of the measure concerned, then there is a greater onus on the decision maker to ensure

that the reasons are transparent not just to those who were involved in the process, but to anyone else who might be

affected as well.”

At par. 6.9 he also stated:-

“….in a case where any party affected by a decision could be in any reasonable doubt as to what the reasons actually

were, it must follow that adequate reasons have not been given”

No such situation of that nature could be said to arise in the instant case. It is scarcely possible to imagine a more straightforward

case and the applicant could have been in no doubt as to the reason or basis for the Commissioner’s decision. In that respect the

present case is quite unlike that considered by the Supreme Court in Kelly v. The Commissioners of An Garda Síochána [2013] IESC

47 where the decision by an appeal board was to summarily dismiss an appeal pursuant to Regulation 35(2)(B) of the 2007

Regulations. In that case the decision of the appeal board was set out on a pre-printed form which merely stated that the appeal was

being dismissed on the grounds that it was “without substance or foundation” and, as O’Donnell J. pointed out:-

“That was the full extent of the information provided to Garda Kelly in respect of a decision which had the effect of

making final his dismissal from An Garda Síochána.”

In that case the Regulations themselves imposed an obligation on the board of inquiry to submit a written report to the Commissioner

which clearly suggested that a narrative setting out the views and therefore the reasons of the board were required. O’Donnell J.

concluded:-

“In my view, therefore, a proper interpretation of the Regulations required that reasons be given for any determination

made by the Board of Inquiry unless it can be said that the issue is so self-evident and narrow that the mere fact of the

decision discloses the reason. That cannot be said to be the case here.”

In that case O’Donnell J. noted that there were conflicts of evidence which he described as “something of a tangled web with

competing allegations of collusion and concoction made either explicitly or implicitly on both sides”.

The present case is not like the Kelly case in that there is no material dispute of fact or “tangled web” and the reasons for the

dismissal are clearly and adequately set out in the decision of The Commissioner. There can be no doubt as to the reason for his

decision, namely, the breach of discipline in the form of the conviction for assault which left the Commissioner satisfied that the

breach of discipline was of such gravity as to merit dismissal.

DECISION

For all of these reasons, I am satisfied that the application for relief herein must be refused.