Commissioner's dismissal decision quashed for failure to give adequate reasons, not for ultra vires or discrimination.

THE SUPREME COURT

[Appeal No. 71/2015]

Denham C.J.

O’Donnell J.

McKechnie J.

Clarke J.

Laffoy J.

Dunne J.

Charleton J.

BETWEEN

MARTHA McENERY

APPLICANT/RESPONDENT

AND

COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT/APPELLANT

Judgment of Ms. Justice Laffoy delivered the 15th day of November, 2016

Procedural history

1. The judicial review proceedings in the High Court from which this appeal arises were brought by the respondent on this appeal (Sgt.

McEnery) against the appellant on this appeal, the Commissioner of An Garda Síochána (the Commissioner), in 2013 seeking, inter alia,

an order of certiorari by way of judicial review quashing a decision made by the Commissioner to summarily dismiss Sgt. McEnery from

An Garda Síochána. At the time the decision was made, Sgt. McEnery had been a member of An Garda Síochána for in excess of

seventeen years and she had occupied the rank of Sergeant for approximately five years. The decision of the Commissioner was

expressed to be made pursuant to Regulation 39 of the Garda Síochána (Discipline) Regulations, 2007, as amended (the 2007

Regulations).

2. The judicial review proceedings were heard in the High Court by Kearns P. who delivered judgment on 20th November, 2014 ([2014]

IEHC 545). Kearns P., for the reasons set out in that judgment, came to the conclusion that Sgt. McEnery’s application for relief must

be refused. The order of the High Court giving effect to that judgment was an order dated 28th November, 2014, which was

perfected on 23rd December, 2014. In the order, it was simply ordered that the Court refused the relief sought. Further, it was

ordered that Sgt. McEnery pay the Commissioner’s costs (to include reserved costs) when taxed and ascertained.

3. Sgt. McEnery appealed from the judgment and order of the High Court to the Court of Appeal. The judgment of the Court of Appeal

(Kelly J., Finlay Geoghegan J. and Peart J.) was delivered by Kelly J. on 16th October, 2015 ([2015] IECA 217). In that judgment it

was found that the Commissioner acted in breach of the requirements of Regulation 39 and on that basis the appeal was allowed. The

order of the Court of Appeal, which was dated 16th October, 2015 and perfected on 20th October, 2015, ordered that the appeal be

allowed and the decision of the Commissioner was thereby quashed. It was further ordered that the Commissioner pay the costs of

Sgt. McEnery of the appeal and the costs in the High Court, the costs to be taxed in default of agreement.

4. The Commissioner applied for leave to appeal the judgment and order of the Court of Appeal to this Court pursuant to Article

34.5.3° of the Constitution. By virtue of a determination of this Court dated 22nd January, 2016 ([2016] IESCDET 11), leave to appeal

was granted.

5. In the course of case management in this Court, it emerged that in the Respondent's Notice filed on behalf of Sgt. McEnery under

Order 58, rule 18(1) of the Rules of the Superior Courts 1986, as amended, there was a failure to specify certain bases on which it

was contended on behalf of Sgt. McEnery that the judgment of the Court of Appeal ought to be affirmed. The issue to which that

gave rise was the subject of a separate hearing by a panel of this Court (Clarke J., MacMenamin J. and Charleton J.). Judgment was

delivered by Clarke J. on 12th May, 2016 ([2016] IESC 26). Leave was given to Sgt. McEnery to argue those bases on the appeal,

particular regard being had to the transitional stage at which this Court’s new constitutional regime was then and also the fact that

all of the relevant points were properly before the Court of Appeal.

6. While the factual and procedural background which led to the Commissioner’s decision to dismiss Sgt. McEnery summarily is

comprehensively outlined in the judgments of the High Court and the Court of Appeal, it is necessary now to outline the essential

features leading to that decision which are relevant to this appeal.

Background to decision

7. In 2011 Sgt. McEnery was charged with assaulting a member of the public causing him harm contrary to s. 3 of the Non-Fatal

Offences Against the Person Act 1997 (the Act of 1997). She was tried along with co-accused in the Circuit Court in Waterford

before a judge and jury in July 2011. On 8th August, 2011 she was acquitted of assault causing harm contrary to s. 3 of the Act of

1997 but she was convicted of one count of assault contrary to s. 2(1) of the Act of 1997. Subsequently, in November 2011 she was

sentenced by the Circuit Court judge to a sentence of four months imprisonment, with provision that the four month prison sentence

be suspended for six months on condition that she enter into a bond to keep the peace, which she did, and be of good behaviour for

a period of six months.

8. Sgt. McEnery appealed against her conviction to the Court of Criminal Appeal in November 2011. By order of the Court of Criminal

Appeal made on 15th October, 2012 the appeal against conviction was dismissed and it was recorded that the sentence appeal was

not pursued. The four months of imprisonment imposed by the Circuit Court would have expired in early March 2012 and the six

months conditional suspension period would have expired in early May 2012.

9. On 24th December, 2012 the Commissioner issued a notice pursuant to Regulation 39 of the 2007 Regulations (the Regulation 39

Notice) to Sgt. McEnery, which contained five paragraphs and which commenced by stating (in para. 1):

“I, Martin Callinan, Commissioner of An Garda Síochána, . . . hereby give you notice that I propose, subject to the

consent of the Minister for Justice and Equality, to dismiss you from An Garda Síochána on the grounds that I consider

you unfit for retention in An Garda Síochána.”

The Commissioner then stated (in para. 2):

“I am not in any doubt that you have committed the following breach of the [2007 Regulations]: –

(a) 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 . . . you were duly convicted on one count of assault contrary to the provisions of

Section 2 of the [Act of 1997] and thereupon judgment was duly given on the 7th day of November 2011 that you

be sentenced to four months imprisonment suspended for six 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 six months and the Oral Bond having

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

The said criminal conduct is a breach of discipline within the meaning of Regulation 5 of the [2007

Regulations] and is described therein at reference number 17 in the schedule to the said Regulations.”

The last three lines of that paragraph were emphasised in bold print.

Paragraph 3 commenced as follows:

“I am not in any doubt as to the material facts on which the above breach of discipline is based and the following is a

summary of the evidence of the said material facts.”

What followed was reference to two documents, namely:

(a) the certificate of conviction dated 9th November, 2011, a copy of which was attached to the Regulation 39 Notice,

issued by the County Registrar for the County of Waterford certifying that

(i) on 8th August, 2011 Sgt. McEnery was duly convicted of one count of assault contrary to s. 2 of the Act of

1997, and

(ii) on 7th November, 2011 she was sentenced to four months imprisonment, suspended in the manner outlined

earlier (in para. 2); and

(b) notice of the result of appeal dated 15th October, 2012 issued on behalf of the Court Registrar of the Court of

Criminal Appeal certifying that at the Court of Criminal Appeal on 15th October, 2012 the appeal against conviction was

dismissed.

There followed (in para. 4) the following statement:

“I am not in any doubt as to the material facts relevant to the breach of discipline specified above and I have decided

that the facts and the breach are of such gravity as to merit your dismissal and that the holding of an Inquiry could not

affect my decision.”

Finally, the Commissioner (in para. 5), in accordance with Regulation 39(4)(c), gave Sgt. McEnery an opportunity of advancing to him,

on or before 21st January, 2013, “reasons against the said proposed dismissal”.

10. Subsequently, a submission was made on behalf of Sgt. McEnery to the Commissioner. Having outlined the content of the

Regulation 39 Notice and the relevant provisions of Regulation 39, the submission included five paragraphs under the heading

“Submissions as to breach of discipline and the facts relied upon by the Commissioner”, the contents of which may be summarised as

follows:

(a) It was submitted that other members of An Garda Síochána had been convicted of assault contrary to s. 2 of the Act

of 1997 and that those members had been permitted to remain in the force and it had not been considered appropriate to

dismiss them summarily. Insofar as the Commissioner was relying solely upon the fact of conviction rather than the

circumstances giving rise to the conviction, it was submitted that it would be arbitrary and unreasonable to dismiss Sgt.

McEnery. Further it was submitted that there was nothing set out in the Regulation 39 Notice (as required by Regulation

39) to indicate the material facts which differentiate her case from cases of other members who had received convictions

for similar summary offences. It was submitted that the simple fact of conviction could not in the circumstances be

ground for summary dismissal.

(b) As regards the Regulation 39 Notice, it was submitted that the material facts had not been fully considered by the

Commissioner in that he relied solely on the fact of conviction, which was only one of the material facts. It was submitted

that the circumstances giving rise to the conviction and the matters before the Court at the time of conviction were also

entirely relevant to the breach of discipline and that the Commissioner could not have considered all the facts, where

reliance was based solely on the certificate of conviction. In seeking to rely solely on the fact of conviction, he had failed

to have regard to a significant amount of facts material to the breach of discipline. Further, it was submitted that, in

relying on the certificate of conviction, the Commissioner was wrongfully delegating his functions under the 2007

Regulations, but this point was not pursued on the appeal.

(c) It was stated that Sgt. McEnery accepts the findings of the jury and further accepts that those findings have an

equivalence to a finding of breach of discipline on her part. However, it was submitted that a board of inquiry established

pursuant to Part 3 of the 2007 Regulations could, and ought properly, consider a lesser sanction than the sanction

proposed. In this context it was submitted that, in effect, the finding of the jury could be summarised as a finding that

Sgt. McEnery had used “unreasonable force” in the arrest of the member of the public in question. Although it was stated

that Sgt. McEnery accepts that such use of unreasonable force is a breach of discipline and requires sanction, it was

submitted that, having considered the evidence before the Circuit Court (or such other evidence as the board wished to

call), and any submissions made by or on behalf of Sgt. McEnery, the board of inquiry ought properly recommend either a

reduction in rank or possibly a reduction in pay as the appropriate sanction. Having emphasised that Sgt. McEnery was

not seeking to ignore the gravity of her conviction, or the circumstances giving rise to it, it was reiterated that the board

of inquiry, considering the totality of the facts leading to the conviction, would not recommend dismissal as the

appropriate sanction. It was then stated:

“It is noteworthy that the jury in the Circuit Court, having considered all the evidence, acquitted Sgt. McEnery of

the more serious charge of assault causing harm and this fact and the evidence leading to that acquittal are of

direct relevance to the sanction which ought to be imposed.”

(d) It was submitted that the holding of an inquiry would affect the decision of the Commissioner for the reasons outlined

at (c) above and also for the reason that Sgt. McEnery would be in a position to adduce evidence as to her previous

good character and disciplinary record, details of which were then outlined. Her personal circumstances, which it was

submitted a board of inquiry or the Commissioner ought properly to consider prior to any decision on sanction, were also

outlined.

(e) It was submitted that the convening of a board of inquiry pursuant to Part 3 of the 2007 Regulations would be the

fairest and most just course in the circumstances. Further it was submitted that the establishment of such a board of

inquiry would not be onerous in all the circumstances, it being suggested that the board could rely on the transcript of

the proceedings in the Circuit Court, to which she would not object, subject to the sole proviso that she might be advised

to give evidence to the board herself. Further, it was stated that Sgt. McEnery would seek to call evidence “in relation to

mitigation”.

11. At the end of the submission, under the heading of “Summary”, inter alia, the following statements were made:

“[Sgt.] McEnery accepts the gravity of the breach of discipline with which she is charged. She accepts the breach in

substance. Further she accepts fully that the breach is a serious breach requires some form of sanction. However she

submits firstly that the [C]ommissioner has not complied with the provisions of [R]egulation 39 in that he has not set out

clearly the material facts in relation to the breach of discipline.

It is submitted that the receipt of a criminal conviction does not as a matter of course give rise to immediate and

summary dismissal from the force. . . . It is submitted that the use of unreasonable force, without any consideration of

the circumstances, cannot and has not heretofore, given rise in the ordinary course to the summary dismissal of a

member of the force.”

It was also reiterated that Sgt. McEnery would welcome the opportunity to expand on her grounds for mitigation of the sanction.

Finally, it was suggested that there was no mechanism under Regulation 39 for Sgt. McEnery to propose an alternative sanction and it

was stated that she would happily accede to any course which would permit the consideration of such sanctions and allow her to

remain in the force.

12. By letter dated 25th March, 2013 on behalf of the Commissioner, Sgt. McEnery’s solicitors were informed that, having considered

her submissions, the Commissioner was not prepared to alter his decision that the conduct of Sgt. McEnery merited her dismissal from

An Garda Síochána in accordance with Regulation 39 and that the Commissioner had decided to proceed with his decision to seek

requisite consent from the Minister for Justice and Equality (the Minister) to dismiss Sgt. McEnery in accordance with Regulation 39.

13. That led to the initiation by Sgt. McEnery of the judicial review proceedings in the High Court. By order of the High Court (Peart

J.) made on 8th April, 2013, Sgt. McEnery was granted leave to seek various reliefs by way of judicial review, including an order of

certiorari quashing the decision of the Commissioner to dismiss her. Before considering the outcome of those proceedings in the High

Court and on appeal to the Court of Appeal, it is of assistance to outline the relevant provisions of the legislative structure within

which the decision of the Commissioner was made.

Legislative structure

14. The 2007 Regulations, including Regulation 39, were made by the predecessor of the Minister, the Minister for Justice, Equality

and Law Reform, in exercise of the powers conferred by s. 123 of the Garda Síochána Act 2005 (the Act of 2005), which authorises

the making, with the approval of the Government, of regulations concerning the maintenance of discipline in An Garda Síochána.

Section 14 of the Act of 2005, which is addressed because it is referred to by counsel for both parties, gives the Commissioner power

to appoint persons to the ranks of garda, sergeant and inspector in An Garda Síochána and to dismiss a member within those ranks.

Sub-section (2) of section 14 deals with dismissal and provides (expressly “[n]otwithstanding anything in this Act or the regulations”,

the regulations, by definition, including the 2007 Regulations) that the Commissioner may dismiss a member within those ranks subject

to compliance with the four conditions then set out. The first condition is that –

“(a) the Commissioner is of the opinion that –

(i) by reason of the member’s conduct (which includes any act or omission), his or her continued membership would

undermine public confidence in the Garda Síochána, and

(ii) the dismissal of the member is necessary to maintain that confidence . . .”

The other conditions set out in paras. (b) to (d) of subs. (2) are that the member be informed of the basis of the Commissioner’s

opinion and be given an opportunity to respond, that the Commissioner consider any such response, and that the Government

consents to the member’s dismissal. Sub-section (3) of s. 14 provides that subs. (2) is not to be taken to limit the power to make or

amend “Disciplinary Regulations”, which expression is defined in s. 3 as meaning the specific regulations then in force for so long as

they should continue in force and any regulations in force under s. 123. Regulation 39 is expressed to be “without prejudice to section

14(2)” of the Act of 2005.

15. The power invoked by the Commissioner in relation to Sgt. McEnery is the power contained in Regulation 39, which is a specific

regulation dealing with summary dismissal, the authority for which is s. 123 of the Act of 2005. While no issue has arisen between the

parties as to any connection between s. 14 and Regulation 39, and each party simply refers to the provisions of s. 14, albeit that

counsel for the Commissioner points to the recognition by the Oireachtas in enacting that provision that in certain circumstances it is

for the Commissioner to determine what amounts to conduct sufficient to warrant dismissal, it seems to me that each of those

provisions is an independent “stand-alone” provision and s. 14 has no specific relevance to the proper interpretation or application of

Regulation 39.

16. Regulation 39 is the only regulation in Part 4 of the 2007 Regulations, which is headed “Summary Dismissal”. Part 3, which is

headed “Serious Breaches of Discipline”, provides for a comprehensive process for dealing with an alleged serious breach of discipline

by a member. That process comprises a multiplicity of stages: an investigation; following the investigation, the possibility of the

establishment of a board of inquiry; if appropriate, action by the Commissioner on foot of the report of the board; and an entitlement

on the part of the member to appeal to an appeal board against the determination of the board of inquiry or the disciplinary action

taken by the Commissioner or both. In contrast the process provided for in Part 4 up to the proposed decision stage only involves the

Commissioner.

17. The power conferred on the Commissioner by para. (1) of Regulation 39 is power, subject to Regulation 39, to –

“. . . dismiss from the Garda Síochána any member (not being above the rank of Inspector) whom he or she considers

unfit for retention in the Garda Síochána.”

That power is qualified by para. (2), which provides that the power of dismissal “shall not be exercised” except where at least one of

three conditions stipulated in that paragraph is complied with. The only one of those conditions which is relevant for present purposes

is that contained in sub-paragraph (a), which stipulates that:

“. . . the Commissioner is not in any doubt as to the material facts and the 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 . . ..”

18. The giving effect to exercise of the power of dismissal is also qualified by para. (4) of Regulation 39 which, insofar as is relevant

to the decision in issue on this appeal, provides:

“The power of dismissal conferred by this Regulation shall not be exercised –

(a) where the member concerned has completed his or her period of probation, without the consent of the Minister,

(b) where paragraph 2(a) applies, without the member concerned being informed of the material facts and the

relevant breach of discipline, and

(c) . . . without the member being given an opportunity of submitting to the Commissioner reasons against the

proposed dismissal.”

19. A “breach of discipline” which is a component of the requirement set out in paragraph (2)(a) is defined in Regulation 3 as having

the meaning given to it in Regulation 5. Regulation 5 defines the expression as follows:

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

The Schedule itemises thirty acts or forms of conduct “constituting breaches of discipline”, as set out in the heading to the Schedule.

Those breaches of discipline are identified for the purpose not only of the application of Part 4 and Part 3, but also Part 2 of the 2007

Regulations, which deals with less serious breaches of discipline.

20. As is clear from the Regulation 39 Notice, the Commissioner was regarding the criminal conduct of Sgt. McEnery which resulted in

her conviction, as set out therein, as “a breach of discipline within the meaning of Regulation 5 . . .” by reference to “number 17 in

the Schedule”, which is in the following terms:

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

a court.”

As counsel for the Commissioner pointed out, breach of discipline in the form of criminal conduct, as thus described, is the only breach

of discipline identified in the Schedule that involves a finding by a court based on a higher standard of proof than is required by the

2007 Regulations. Regulation 9 of the 2007 Regulations stipulates that in any disciplinary proceedings proof of a breach of discipline is

to be established on the balance of probabilities.

21. It is important to record that counsel for Sgt. McEnery have at all times made it clear that it is not contended that Regulation 39

is in any way defective in law or ultra vires the powers conferred on the Minister under the Act of 2005. Moreover, it is not

contended that the Commissioner does not have the necessary power to apply the provisions of Regulation 39 in an appropriate case.

It is accepted that the Commissioner is entitled to summarily dismiss a member without holding an inquiry provided the circumstances

identified in Regulation 39 are met and further that the decision complies with the principles of natural and constitutional justice. As

regards Regulation 39, the nub of the challenge by Sgt. McEnery to the decision of the Commissioner has at all times been that he did

not properly apply its provisions.

Judgment of the High Court

22. In his judgment in the High Court, Kearns P. identified three grounds of complaint pursued on behalf of Sgt. McEnery. What he

characterised as the main ground of complaint was 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. In relation to this complaint, Kearns P. stated (at p. 13):

“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.”

23. It was also recorded by Kearns P. that Sgt. McEnery had claimed that “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 [Act of 1997] and, like her, having been convicted

of assault simpliciter contrary to s. 2 of the same Act who were not in fact dismissed” (at p. 11). Having analysed what was

disclosed in the discovery made by the Commissioner in the proceedings, Kearns P. concluded as follows (at p. 13):

“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.”

24. Finally, it was recorded that Sgt. McEnery also claimed that the decision of the Commissioner should be quashed because he

failed to give adequate reasons for his decision. On this point, Kearns P. stated that the reasons given by the Commissioner were

clearly set out in the Regulation 39 Notice and that by the letter of 25th March, 2013 the Commissioner indicated that he was not

prepared to alter his decision. Kearns P. stated that he accepted 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. He cited two

recent decisions of this Court, including Kelly v. The Commissioner of An Garda Síochána [2013] IESC 47. On this point Kearns P.

concluded as follows (at p. 17):

“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.”

Judgement of the Court of Appeal

25. Before addressing the principal point pursued on behalf of Sgt. McEnery on the appeal, Kelly J., in his judgment made some general

observations, with which I agree, in relation to the power given to the Commissioner to summarily dismiss a member of the force. He

pointed out (at para. 32) that the exercise of the power under s. 14 of the Act of 2005 is not subject to the unfair dismissal

legislation and that members have no recourse open to them in that regard save by way of judicial review. The same limitations apply

to the power to summarily dismiss under Regulation 39. Referring to a passage from the judgment of the High Court (O’Hanlon J.) in

State (Jordan) v. Commissioner of An Garda Síochána [1987] I.L.R.M. 107 (Jordan), which he had quoted (at para. 21) and which had

been quoted in part by Kearns P. in his judgment, Kelly J. stated that the power of summary dismissal, as was stated by O’Hanlon J.,

is an exceptional one and it is one which may only be used in “very limited” circumstances. He also adverted (at para. 34) to the

procedure provided for in Part 3 of the 2007 Regulations as being the normal method for dealing with serious breaches of discipline. He

noted (at para. 35) that the only check on the exercise of the power of summary dismissal by the Commissioner is the fact that he is

required to seek the consent of the Minister before giving effect to a decision to dismiss. Having regard to the foregoing matters,

Kelly J. stated (at para. 36):

“Given the very limited recourse which is available to a Garda who is subject to a summary dismissal under Regulation 39,

the exceptional nature of the power given to the Commissioner and the very limited scope for the exercise of that power,

the courts on judicial review ought to be astute to ensure that the power is exercised properly and in accordance with

law.”

26. In his judgment, Kelly J. identified the principal point which was made on the appeal on behalf of Sgt. McEnery as being that the

Commissioner had confused and conflated two quite separate matters, namely the material facts and the relevant breach of discipline.

As to the proper interpretation of Regulation 39, having quoted, in part, Regulation 39(2)(a), Kelly J. stated (at para. 38):

“Thus, on the plain wording of [R]egulation 39, the Commissioner must not be in any doubt as to (i) the material facts and

(ii) that the relevant breach of discipline is of such gravity that both ‘the facts and the breach merit dismissal’ before the

power of summary dismissal can be exercised. (My emphasis).”

27. Having recorded that it had been contended on behalf of Sgt. McEnery that the certificate of conviction “cannot in and of itself

amount to all material facts”, and that he was of opinion that such contention was correct, Kelly J. stated (at para. 41):

“Such a certificate gives no information as to the nature of the assault, the manner in which it occurred or the

circumstances which gave rise to the jury acquitting the appellant of the s. 3 offence and convicting under the lesser s. 2

or any other material facts.”

Kelly J. then (at para. 42) expressed the view that the Commissioner had indeed conflated the two matters upon which he had to be

satisfied under Regulation 39. Observing that the Commissioner “must not be in any doubt as to the material facts and the relevant

breach of discipline being of such gravity that the facts and the breach merit summary dismissal”, he stated that the Commissioner is

required –

“. . . to consider not just the conviction (or criminal conduct) which constitutes the breach of discipline but also the

material facts which may be extraneous to the actual breach but nevertheless material.”

28. Setting out his conclusion, Kelly J. stated as follows (at para. 43):

“By treating the material facts and the breach of discipline as one and the same he blinkered himself from a consideration

of material facts. That was in breach of the requirements of Regulation 39 and of [Sgt. McEnery’s] right to have the

material facts which gave rise to the breach of discipline fully considered.”

On the basis of the foregoing conclusion, the appeal to the Court of Appeal was allowed and the decision of the Commissioner was

quashed. However, Kelly J. noted (at para. 44) that such order “does not preclude the [Commissioner] from taking whatever lawful

steps are deemed appropriate concerning [Sgt. McEnery] pursuant to the Regulations”.

29. It will be clear from the foregoing outline of the judgment of the Court of Appeal that the Court of Appeal did not address two of

the arguments which had been raised in the High Court and which had been rejected by Kearns P. As has been recorded earlier (at

para. 5), this Court has determined that Sgt. McEnery is entitled to argue the additional or alternative bases argued in the High Court

on this appeal, which were succinctly summarised by Clarke J. in his judgment (at para. 2.1) as follows:

“. . . a further ground was canvassed arising from what was said to be the inadequacy of the reasons given by the

Commissioner for the decision to summarily dismiss, together with a ground arising from what was argued to be

discrimination in the implementation of the summary dismissal provision, given that other gardaí, it was said, who were the

subject of similar convictions, were not dismissed.”

30. The outcomes of all of the foregoing judgments create the context within which, having regard to the grounds relied on by both

parties to this appeal, the issues which fall to be considered by this Court are identified.

The issues on this appeal

31. In the light of the foregoing, I consider that the issues which fall to be determined on this appeal are the following:

(a) Whether the decision of the Commissioner as proposed in the Regulation 39 Notice of 24th December, 2012 and

confirmed in the letter of 25th March, 2013 is ultra vires Regulation 39 by being in breach of the requirements of

Regulation 39(2)(a) by reason of the reliance by the Commissioner solely on the conviction of Sgt. McEnery in the Circuit

Court and the sentence imposed on her as material to the breach of discipline and of the failure of the Commissioner to

consider any other facts which it is contended on behalf of Sgt. McEnery are material facts for the purpose of the proper

application of Regulation 39(2)(a).

(b) Whether the decision of the Commissioner should be quashed on the ground that the Commissioner failed to give

adequate reasons for his decision in accordance with either –

(i) the requirements of Regulation 39, or

(ii) the principles of natural and constitutional justice.

(c) Whether Sgt. McEnery has established that the decision of the Commissioner contravened natural and constitutional

justice in treating Sgt. McEnery in a manner which is discriminatory and disproportionate in comparison to the treatment

of other members of An Garda Síochána who have been convicted of assault.

First issue: whether decision ultra vires Regulation 39

32. In considering the first issue, the Commissioner having invoked Regulation 39 and opted to exercise the power to summarily

dismiss Sgt. McEnery, the fundamental questions are: –

(a) How was the Commissioner required to exercise the power thereby conferred in accordance with the provisions of

Regulation 39 and, in particular, Regulation 39(2)(a)?

(b) Were those provisions properly complied with in the issuance of the Regulation 39 Notice and the subsequent decision

giving effect to the proposed decision, having regard to the apparent failure of the Commissioner to consider any facts as

being material facts, other than the fact of the conviction of Sgt. McEnery for the s. 2 offence and the penalty imposed

on her by the Circuit Court?

Answering those questions involves, first, a consideration of the proper interpretation of Regulation 39 and, in particular, Regulation

39(2)(a), which is a question of law, and, thereafter, an analysis of what the Commissioner, on the basis of the evidence available,

did.

33. On the interpretation of Regulation 39, the position of counsel for the Commissioner is that the primary test in determining

whether the Commissioner has power to summarily dismiss is whether the member, in this case Sgt. McEnery, is “unfit for retention” in

An Garda Síochána. The making of that decision is a matter solely for the Commissioner. However, it is subject to the Commissioner

being satisfied as to compliance with the limitations imposed by Regulation 39(2), of which Regulation 39(2)(a) only is relevant on this

appeal, which limitations preclude the Commissioner from exercising the power of summary dismissal unless the relevant provisions, in

this case all the components of Regulation 39(2)(a), are complied with.

34. As regards the proper interpretation of Regulation 39(2)(a), the position of counsel for the Commissioner is that, properly read, it

requires that –

(i) the Commissioner is not in any doubt as to the material facts, and

(ii) the relevant breach of discipline is of such gravity that the Commissioner has decided that the facts and the breach

merit dismissal, and

(iii) the holding of an inquiry under the 2007 Regulations could not affect the Commissioner’s decision in the matter.

In other words, it comprises three components. In particular, counsel for the Commissioner submit that the standard that the

Commissioner be “not in any doubt” only applies to the “material facts” component of the provision, so that, it is suggested, the

interpretation in the judgment of the Court of Appeal (at para. 38), which is quoted earlier, is erroneous.

35. There is, perhaps understandably, a considerable amount of “hair-splitting” on the part of both parties on the proper

interpretation of Regulation 39. However, I am satisfied that the identification of the three components of Regulation 39(2)(a) which

is suggested on behalf of the Commissioner, as outlined in the next preceding paragraph, reflects the proper construction of

Regulation 39(2)(a). If the Commissioner is satisfied that the requirements of those three components are met, he may then consider

the primary test – whether the member is “unfit for retention”. It is worth noting that the focus of Regulation 39(2)(a) is on a breach

of discipline, whereas the other sub-paragraphs of Regulation 39(2), in broad terms, focus on the security of the State (sub-para.

(b)) and failure to attend for duty (sub-para. (c)). The material facts referred to in sub-para. (a), accordingly, are facts relevant to

the breach of discipline on the part of the member.

36. Turning to what the Commissioner did in giving effect to Regulation 39(2)(a) by issuing the Regulation 39 Notice, in my view, this

is best analysed by considering what can be gleaned from the Regulation 39 Notice itself as to how the Commissioner determined that

he was not precluded by Regulation 39(2)(a) in adopting the summary dismissal approach, which, in reality, is the only evidence

available on this point. In relation to the requirements of Regulation 39(2)(a), it was stated in the Regulation 39 Notice as follows: –

(a) As regards the first component, the Commissioner was not in any doubt –

(i) that Sgt. McEnery had committed the breach of the 2007 Regulations outlined, which was identified by reference

to the breach of discipline referenced at number 17 in the Schedule (para. 2),

(ii) as to the material facts on which the breach of discipline was based (para. 3), and

(iii) as to the material facts relevant to the breach of discipline specified therein (para. 4).

Further, the material facts were identified (in para. 3) in the summary of the evidence of the said material facts set

out therein by reference to the certificate of conviction and of the imposition of the sentence and the result of the

appeal.

(b) As regards the second and third components, it was not stated that the Commissioner was “not in any doubt” in

relation to either of those components. Rather it was stated that he had made a decision in relation to each of those

components (para. 4).

Whether in the Regulation 39 Notice the Commissioner addressed all of the requirements of Regulation 39(2)(a) turns, however, on

whether the identification in it of the material facts by the Commissioner is correct, as is contended by the Commissioner, which is

vigorously disputed on behalf of Sgt. McEnery.

37. The core issue, accordingly, is whether, in identifying the material facts solely as the unsuccessfully appealed conviction of Sgt.

McEnery on one count of assault contrary to s. 2 of the Act of 1997 and the imposition of the sentence of four months by the Circuit

Court judge by reference to the certificate of conviction, and in not identifying the other facts suggested on behalf of Sgt. McEnery

as being material, the Commissioner established that the first component of Regulation 39(2)(a) was complied with, so that he was

not precluded by Regulation 39(2) from exercising the power of summary dismissal. In addressing that issue, it is necessary to

consider what other factual matters are contended on behalf of Sgt. McEnery as being material facts within the meaning of s. 39(2)

(a), which should have been addressed in the Regulation 39 Notice. As the summary of Sgt. McEnery’s submissions to the

Commissioner outlined earlier (at paras. 10 and 11) indicate, in those submissions it was suggested in very general terms that the

following matters constituted facts which were material to the application of s. 39(2)(a):

(a) the circumstances giving rise to the conviction;

(b) the matters before the Circuit Court at the time of the conviction and the evidence before the Circuit Court;

(c) the fact that the jury in the Circuit Court, having considered all the evidence, acquitted Sgt. McEnery of the more

serious charge under s. 3 of the Act of 1997; and

(d) the evidence leading to that acquittal.

Having considered the statement of grounds filed on behalf of Sgt. McEnery in the High Court, I consider that there is nothing in that

statement which goes beyond the matters outlined above. Moreover, I do not consider that, before the Regulation 39 Notice was

issued, the Commissioner was under any obligation to have regard to matters outside the parameters of Regulation 39(2)(a) which

might have been considered by a board of inquiry under Part 3 of the 2007 Regulations in considering the application of Regulation 39

to the circumstances, for example, the disciplinary record of Sgt. McEnery or her personal circumstances.

38. The first component of Regulation 39(2)(a) clearly envisages that the Commissioner will have regard to two matters: the material

facts and the relevant breach of discipline and that, in assessing the gravity of the breach of discipline to decide whether it merits

dismissal, he or she must make the relevant decision by reference to “the facts and the breach”. That the Commissioner has to have

regard to both matters is reflected in Regulation 39(4)(b), which stipulates that the member must be informed of “the material facts

and the relevant breach of discipline”. The necessity for the Commissioner to be in no doubt as to the material facts, which clearly

involves being satisfied that there is no conflict as to the underlying facts, and to disclose those facts to the member to whom notice

is being given under Regulation 39 is very obvious in the case of the various types of conduct itemised in the Schedule, apart from

the “[c]riminal conduct” referenced at Number 17. To take the first conduct itemised in the Schedule as an example, it is referred to

as “[d]iscreditable conduct”, that is to say, the member –

“. . . conducting himself or herself in a manner which the member knows, or ought to know, would be prejudicial to

discipline or reasonably likely to bring discredit to the Garda Síochána.”

Clearly, for the Commissioner to assert that such conduct on the part of a member constitutes such a breach of discipline, the

material facts would have to be identified. However, the question at the heart of the dispute between the Commissioner and Sgt.

McEnery, given that the breach relied on by the Commissioner is the breach referenced at number 17 in the Schedule, is whether, as

the Commissioner contends, the material facts coincide with, that is to say, correspond to the actual basis of the breach, being

criminal conduct constituting an offence in respect of which there has been a conviction, or whether, as Sgt. McEnery contends, the

material facts extend beyond the conviction.

39. On the appeal, the Commissioner takes issue with all of the findings of the Court of Appeal contained in paras. 41 to 43 inclusive

of the judgment, as outlined earlier. On the finding as to the conflation of the two matters, namely, material facts and relevant

breach of discipline, it is contended that the Commissioner did not “wrongly” conflate those matters. Aside from suggesting that the

two matters could be said to have crystallised together with the conviction given the nature of the breach, it is submitted that the

Commissioner dealt with each of the matters sequentially in the Regulation 39 Notice and, accordingly, did not wrongly conflate them.

Having pointed to the broad range of acts and conduct which constitute a breach of discipline as defined in the 2007 Regulations by

reference to the Schedule therein, it is suggested that it is obvious that in some scenarios the breach and the material facts may not

be one and the same, so that the Commissioner is obliged to look at both. It is submitted on behalf of the Commissioner that the

position is necessarily different when dealing with criminal conduct as itemised by reference to number 17 in the Schedule, where a

court or a jury has already determined the material facts beyond reasonable doubt. It is also submitted that, if the Commissioner was

required in relation to the conviction in this case to consider the nature of the assault, the manner in which it occurred or the

circumstances which gave rise to the jury acquitting Sgt. McEnery of the s. 3 offence, as the Court of Appeal has found, that would

necessarily involve looking behind and undermining the verdict of the jury, notwithstanding that it was upheld on appeal, and

undermining the conviction.

40. It is further submitted on behalf of the Commissioner that, if the Commissioner is required to look behind the verdict of the jury,

the consequence is that the power of summary dismissal given to the Commissioner is weakened to the extent of being unworkable.

Further, as to the position of Sgt. McEnery, as recorded in the judgment of the Court of Appeal (at para. 26), namely, that a

consideration of the material facts or conduct which gave rise to the conviction would “involve consideration of the transcript of the

evidence [in the Circuit Court]” and also “the ability on the part of the appellant to adduce evidence of her own circumstances and

character”, it is suggested that such an approach would involve something other than a summary process as envisaged in Regulation

39. In any event, it is submitted that the latter matters are not facts which are material to the breach of discipline, but rather

represent an attempt by Sgt. McEnery to mitigate her situation and, accordingly, are matters to be raised only by submission

pursuant to Regulation 39(4)(c).

41. Counsel for Sgt. McEnery, in support of their submission that the certificate of conviction for assault simpliciter was an

insufficient basis for the Commissioner to conclude that Sgt. McEnery is unfit to be retained in the force, submit that it is important to

have regard to the phraseology of the breach of discipline the subject of the Commissioner’s decision, that is to say, the breach

referenced at number 17 in the Schedule to the 2007 Regulations. It is suggested that it is not a breach of discipline to be convicted

of a criminal offence, but rather the breach is the conduct which results in the criminal conviction. It is true that it is “[c]riminal

conduct” which constitutes the breach of discipline, but, as the words identifying the relevant breach at number 17 in the Schedule

make clear, that is “conduct constituting an offence in respect of which there has been a conviction by a court”, which is somewhat

unusual phraseology. As regards the interpretation suggested by counsel for Sgt. McEnery, it seems to me that, if the intention in

enacting the 2007 Regulations was that the breach of discipline referenced at number 17 of the Schedule should be the actual

conduct on the part of the member which results in a criminal conviction, that could have been simply stated in those terms. The

words used at number 17 do not say that. On the contrary, they give the impression of a deliberate detachment from the actual

conduct of the member which resulted in the conviction, which suggests that the objective may have been to avoid the conviction

being re-opened in the disciplinary process. Considering the words used in the overall context of the Schedule and of the 2007

Regulations as a whole, by reference to the objective of the Act of 2005, I have come to the conclusion that the proper

interpretation of the words “conduct constituting an offence” is conduct or behaviour which, as laid down by statute or common law,

makes up a particular offence, or, to put it another way, the nature of the offence having regard to the ingredients of that offence.

42. While it is also true, as is submitted on behalf of Sgt. McEnery, that, as with all other breaches of discipline, there is nothing to

suggest that a breach by reference to number 17 of the Schedule must automatically be categorised as either serious or less serious,

the “serious” and “less serious” dichotomy which is an integral part of the 2007 Regulations, while of relevance in relation to the

disciplinary processes provided for in Part 3 and Part 2 respectively, is not of relevance in relation to Part 4, that is to say, Regulation

39. In particular, where the requirements of Regulation 39(2)(a) must be met, the “serious” test is expressed in explicit terms and

requires that the facts and the breach be of such gravity as to merit dismissal, which leads to the primary test, the “unfit for

retention” test.

43. Attention is also drawn by counsel for Sgt. McEnery to the difference between the nature of the offence for which Sgt. McEnery

was tried in the Circuit Court, the offence created by s. 3 of the Act of 1997, and the offence for which she was ultimately

convicted, the offence created by s. 2 of the Act of 1997. Section 3(1) provides:

“A person who assaults another causing him or her harm shall be guilty of an offence.”

The word “harm” is defined in s. 1 of the Act of 1997 as meaning “harm to body or mind and includes pain and unconsciousness”. It is

suggested by counsel for Sgt. McEnery that the threshold for what constitutes harm is very low and can include pain. Section 2(1),

on the other hand, provides:

“A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly –

(a) directly or indirectly applies force to or causes an impact on the body of another, or

(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any

such force or impact,

without the consent of the other.”

It must be of significance, it is suggested on behalf of Sgt. McEnery, that the jury saw fit to acquit her of causing harm to the

member of the public and that this is a matter which ought to have formed part of the consideration of Sgt. McEnery’s position by the

Commissioner.

44. That the jury acquitted Sgt. McEnery of the s. 3 offence, in my view, is not material to the function of the Commissioner under

Regulation 39 in the manner suggested by counsel for Sgt. McEnery, namely, that the acquittal and the evidence leading to it is a

“material fact” for the purposes of the first component of Regulation 39. The Commissioner’s primary function under Regulation 39 is to

determine whether Sgt. McEnery is unfit for retention in An Garda Síochána. In the exercise of that function, the Commissioner must

be satisfied that the breach of discipline is of such gravity that both the facts and the breach merit dismissal. The breach in this case

is conduct constituting the offence under s. 2 of the Act of 1997 of which Sgt. McEnery was convicted, which was conviction on one

count of assault contrary to s. 2, as the certificate of conviction records.

Given that the breach is based on conduct constituting the offence under s. 2, the only facts material to the gravity of the breach

and whether dismissal is merited are the fact of conviction by the jury, the nature of the offence which was the subject of the

conviction, and the imposition of the sentence by the Circuit Court following the conviction. It follows that neither the factual basis

of the assault nor the factual circumstances in which it occurred are material facts, as contended for on behalf of Sgt. McEnery.

However, it must not be overlooked that on an objective analysis of the gravity of the breach of discipline based on the nature of the

offence which was the subject of the conviction, a relevant factor may be a comparison with the nature of a more or less serious

offence of which the member might be charged and convicted or acquitted.

45. The application of Regulation 39 by reference to a breach of discipline based on the existence of the criminal conduct referred to

at number 17 in the Schedule to the 2007 Regulations may arise by reason of conviction on a broad range of offences, ranging in

seriousness, for example, from conviction for murder, on the one hand, to conviction for a summary offence for which a fine is

imposed, say, for having in one’s possession a television set without authorisation by a television licence for the time being in force,

on the other hand. In every case, what the Commissioner has to be satisfied as to is whether the conduct constituting the offence,

which is the subject of the offence, which, in reality, is the basis of the breach of discipline, merits dismissal. Applying that test to

each of the two examples given above should not present any undue difficulty for the Commissioner in determining whether dismissal

is merited, in that it would clearly be merited for conduct which led to conviction for murder but not to conviction and a fine for

having a television set without a licence.

46. On the other hand, there are unquestionably within the range of offences between those two examples many offences conviction

for which would present difficulty for the Commissioner in determining whether in a particular case the conduct constituting such

offence would merit dismissal or not, where there has been a conviction for the offence. In such cases, in my view, on the proper

construction of Regulation 39, the Commissioner must conduct an objective analysis of the information available in relation to the

offence to which the conviction relates. In so doing, the obvious questions which must be addressed are the following:

(a) What is the nature of the offence (whether punishable on indictment or on summary conviction), which should be

ascertainable with clarity from the certificate of conviction and by reference to the relevant statutory provisionor

common law rule which creates the offence?

(b) What is the gravity, that is say, the seriousness of the conduct constituting the offence for which the member has

been convicted in the context of considering whether the member convicted is unfit for retention in the force under a

regulation the objective of which is to ensure the maintenance of discipline in An Garda Síochána?

(c) In aid of answering the question at (b), how is the seriousness of the offence and the conviction for the offence

reflected in the sanction imposed by the sentencing court?

(d) Would the holding of an inquiry under Part 3 of the 2007 Regulations affect the decision of the Commissioner; in other

words, depending on the process under Part 3, would a board of inquiry recommend, or, on appeal, would the appeal

board decide, that the appropriate disciplinary action is dismissal?

With the answers to question (a) and question (b) and with the assistance of the answer to question (c), the Commissioner should be

in a position to determine the second component of Regulation 39(2)(a), namely, whether the breach of discipline in question merits

dismissal. If he determines that it does merit dismissal, and, additionally, if the answer to question (d), which the Commissioner is in a

better position to answer than anybody else, is that the relevant adjudicative body would not, as a matter of probability, recommend

or decide that the appropriate disciplinary action should be a sanction other than dismissal, the third component of Regulation 39(2)

(a) would be complied with.

47. In this case, before issuing the Regulation 39 Notice, the Commissioner was in a position to effectively address each of those

questions. Moreover, in my view, for present purposes it may be assumed from consideration of the contents of the Regulation 39

Notice, that he did so.

48. Reiterating that, on the proper interpretation of Regulation 39 by reference to the breach referred to at number 17 in the

Schedule to the 2007 Regulations, the breach of discipline is conduct constituting the offence of which the member is convicted, as

stated earlier, the contention of counsel for Sgt. McEnery that the Commissioner was required to consider the nature of the assault

and the circumstances in which it occurred, in my view, is not correct. However, in support of that contention, reference is made to

the fact that a member of An Garda Síochána may still be disciplined for an assault on a member of the public, even if he or she has

been acquitted, and further that there is a possibility that the member will be dismissed as a result of the disciplinary process, the

process in question obviously being the process provided for in Part 3 of the 2007 Regulations. That possibility does undoubtedly

exist, because, as has been referred to earlier, the standard of proof applicable in any disciplinary proceedings under the 2007

Regulations is the balance of probabilities. However, where the basis of the breach of discipline is criminal conduct constituting an

offence in respect of which there is a conviction where the standard of proof applied is beyond reasonable doubt, that argument does

not advance Sgt. McEnery’s case. On the contrary, if, for example, in a situation where a member had been convicted before a jury

of a criminal offence, it was open to a board of inquiry set up under Part 3 of the 2007 Regulations to come to a different conclusion,

perhaps, because witnesses who had testified at the criminal trial were unavailable or unwilling to give evidence, the disciplinary

process would, as submitted on behalf of the Commissioner, be unworkable.

49. What is of crucial significance in this case, in my view, is that the Commissioner availed of the option, which was open to him, to

summarily dismiss Sgt. McEnery as provided for in Regulation 39. If he had considered it appropriate, which he obviously did not, he

might have invoked the procedure provided for in Part 3 of the 2007 Regulations. However, neither a member of An Garda Síochána,

nor a court at the request of the member, can compel or mandate the Commissioner to avail of the Part 3 process rather than the

summary dismissal process.

50. In this case, in issuing the Regulation 39 Notice, the Commissioner took the primary step in the first stage of that process. The

necessity for the existence of a summary dismissal process in relation to members of An Garda Síochána is recognised in the passage

in Jordan quoted in the judgment of the Court of Appeal. There, O’Hanlon J. stated (at p. 115):

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

members of the armed forces, or the Garda Síochána, and of the prison service because it is of 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 . . . the exceptional powers contained in Reg. 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.”

51. By way of explanation, Reg. 34 referred to in that passage was the predecessor of Regulation 39 of the 2007 Regulations. Insofar

as is relevant for present purposes, in substance, Regulation 39 is similar to Reg. 34. I would not disagree with anything stated in that

passage. However, of course, as has been recorded earlier (at para. 21) there has never been a challenge by Sgt. McEnery to the

validity of Regulation 39. In his judgment in Jordan, O’Hanlon J. then went on to suggest some circumstances in which the

Commissioner would be justified in going the summary dismissal route rather than holding an inquiry. One such example was where the

Commissioner was a witness to a grave breach of discipline by the member in question, which was committed in his presence. Another

example was where the member admitted that he was guilty of a serious breach of discipline, O’Hanlon J. stating that (at p. 115) –

“. . . the Commissioner could lawfully act upon the faith of such admission without resorting to the time-consuming

process of the inquiry machinery which is outlined in the regulations.”

52. The circumstances of this case do not align with either of the circumstances identified by O’Hanlon J. in Jordan. In this case,

Regulation 39 was invoked in circumstances where Sgt. McEnery had been convicted of the offence under s. 2 of the Act of 1997 in

the Circuit Court and a sentence had been imposed in consequence, although suspended. It is not the case, in my view, that the use

of Regulation 39 in those circumstances could be considered as exceeding the “very limited in character” use suggested in Jordan,

which is an interpretation with which I agree. The Regulation 39 Notice was issued by the Commissioner in this case after the

unsuccessful appeal to the Court of Criminal Appeal against the conviction. Given that, when the Regulation 39 Notice issued, Sgt.

McEnery had been convicted by the jury in the Circuit Court over sixteen months earlier, and the sentence of the Circuit Court had

been imposed over thirteen months earlier, it is hardly surprising that at that stage the Commissioner would wish to avoid “the time-

consuming process of the inquiry machinery” outlined in the 2007 Regulations. Whether he was entitled to initiate the summary

dismissal process at that stage, as he did, depends on whether the requirements of Regulation 39(1) and (2)(a) were complied with.

As stated earlier, I consider that it may be assumed for present purposes from the contents of the Regulation 39 Notice that he

addressed them and, in particular, that he addressed “the facts and the breach” as he was required to do, being the conviction and

the sentence, in determining whether the breach of discipline was of such gravity as to merit dismissal.

53. The answer to the first issue turns on the proper interpretation of Regulation 39(2)(a) on its application by reference to the

criminal conduct referred to at number 17 in the Schedule to the 2007 Regulations. While, hitherto, the focus has been primarily on

the actual wording of those specific provisions, it must be borne in mind that the 2007 Regulations must be interpreted against the

background of the Act of 2005, and, in particular, s. 123, from which it is clear that the objective of the 2007 Regulations is the

maintenance of discipline in An Garda Síochána. Moreover, while the maintenance of discipline is important in its own terms, it is also

crucial for maintaining public confidence in An Garda Síochána. A fundamental function of An Garda Síochána is upholding the criminal

law. It is important to recall that the proper interpretation of the criminal conduct referred to at Number 17 in the schedule is relevant

to the disciplinary processes governed by Part 3 and Part 2 of the 2007 Regulations, not just to Regulation 39. The example given

earlier (in para. 48) as to a situation in which the disciplinary process would be unworkable, clearly illustrates that to interpret the

breach of discipline invoked by the Commissioner in this case by reference to Number 17 in the schedule other than in the manner

suggested earlier (in para. 42) would not be conducive to the maintenance of discipline in An Garda Síochána and would have the

effect of eroding public confidence in An Garda Síochána.

54. Having regard to the foregoing, the answer to the first issue is that there was no material fact which the Commissioner was

obliged not to be in any doubt about or to have regard to in determining whether the breach of discipline was of such gravity as to

merit dismissal other than the fact of the conviction of Sgt. McEnery of the offence under s. 2 of the Act of 1997 and the sentence

imposed by the Circuit Court judge. The Commissioner did not act in breach of the requirements of Regulation 39(2)(a) in not

addressing any other matters and, in particular, the matters in relation to her trial in the Circuit Court which it is contended on behalf

of Sgt. McEnery that he should have addressed and found to be material facts. The Commissioner acted in compliance with Regulation

39(2)(a) in deciding that the material facts were the conviction and sentence of Sgt. McEnery as recorded in the Regulation 39

Notice (para. 3) and it was those facts which he had to assess in determining whether the breach was of such gravity as to merit

dismissal.

55. Accordingly, the Commissioner’s decision to summarily dismiss Sgt. McEnery is not ultra vires Regulation 39 by reason of non-

compliance with Regulation 39(2)(a) on the basis alleged on behalf of Sgt. McEnery.

Second issue: whether the Commissioner failed to give adequate reasons

56. Having regard to the legislative structure embodied in Regulation 39, the first stage in the process thereby created is the

determination by the Commissioner as to whether he or she considers that the member is unfit for retention in An Garda Síochána,

which determination, having regard to the facts in this case, requires to be made in accordance with the provisions of Regulation

39(1) and (2)(a). Once that determination is made and it is to the effect that the Commissioner considers the member unfit for

retention and proposes to dismiss the member, the Commissioner is obliged to inform the member of the material facts and the

relevant breach of discipline in accordance with Regulation 39(4)(b). Up to that point, the summary dismissal process provided for in

Regulation 39 is governed by the provisions of Regulation 39. The second stage is that, the member having been given an opportunity

of submitting to the Commissioner reasons against the proposed dismissal and having availed of that opportunity, the Commissioner

conclusively determines whether the member is unfit for retention. Although not expressly provided for in Regulation 39, it is clearly

implicit that the Commissioner, before making the conclusive determination as to the proposed decision, will have regard to any

submissions made by the member. In any event, clearly the principles of natural and constitutional justice require the Commissioner to

do so. The final stage is that, if the Commissioner determines that the member should be dismissed from An Garda Síochána, the

consent of the Minister is necessary to the giving effect of such determination.

57. On the basis of the foregoing analysis, and having regard to the reasoning underlying the conclusion on the first issue as to the

material fact and the relevant breach of discipline by reference to the Regulation 39 Notice, I consider that the question of adequacy

of reasons only falls to be determined in relation to the determination of the Commissioner at the second stage in the process in this

case. The final stage in the process, the consent of the Minister, has not yet been reached and, of course, the Minister is not a party

to the proceedings.

58. Accordingly, in addressing the issue whether the Commissioner failed to give adequate reasons for his decision, the question which

falls to be considered relates to the adequacy of the reasons, if any, given by the Commissioner for the determination at the second

stage in the process that, subject to the consent of the Minister, Sgt. McEnery be dismissed from An Garda Síochána, as set out in

the letter of 25th March, 2013.

59. The recent decision of this Court in Mallak v. Minister for Justice [2012] 3 I.R. 297 (Mallak) is the appropriate starting point in

considering the current state of the law in this jurisdiction on the necessity for a decision maker, whether making an administrative

decision or a decision in exercise of a statutory power, to give reasons for the decision. Having analysed various authorities over the

previous three decades in the context of the developing general principles of judicial review, Fennelly J., with whom the other

members of the Court concurred, stated (at para. 65):

“This body of cases demonstrates that, over a period approaching 30 years, our courts have recognised a significant

range of circumstances in which a failure or refusal by a decision maker to explain or give reasons for a decision may

amount to a ground for quashing it. Costello J. [in McCormack v. Garda Síochána Complaints Board [1997] 2 I.R. 489]

attached importance, quite correctly, to the presence or absence from the statutory scheme of a right of appeal. The

absence of a statement of reasons may render such a right nugatory.”

However, Fennelly J. addressed the situation where there was no right of appeal in the scheme stating (at para. 67):

“More fundamentally, and for the same reason, it is not possible for the applicant, without knowing the Minister's reason

for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, it is not possible for

the courts effectively to exercise their power of judicial review.”

Fennelly J. then summarised the current state of the law as follows (at para. 68):

“In the present state of evolution of our law, it is not easy to conceive of a decision maker being dispensed from giving an

explanation either of the decision or of the decision making process at some stage. The most obvious means of achieving

fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the

underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the

affected person has been enabled to respond to the concerns of the decision maker, there may be situations where the

reasons for the decision are obvious and that effective judicial review is not precluded.”

60. The only aspect of the judgment of Fennelly J. in Mallak relied upon by counsel for the Commissioner is the statement in the last

sentence of the last passage quoted above that “there may be situations where the reasons for the decision are obvious and that

effective judicial review is not precluded”, presumably implying that this case was such a situation. However, counsel for Sgt.

McEnery point to one ground set out in the Commissioner’s statement of opposition filed in the High Court, which it is suggested was

certainly not obvious before the statement of opposition was delivered. In response to the allegation embodied in the third issue

identified on this appeal, that there is nothing set out in the Regulation 39 Notice to indicate the material facts which differentiate

Sgt. McEnery’s case from other members of An Garda Síochána who have received convictions for similar offences, having denied, in

the statement of opposition, that action taken by the Commissioner in relation to other members is of any relevance to the decision

of the Commissioner in respect of Sgt. McEnery, without prejudice to that, it was stated: “there has been no other disciplinary

proceedings concerning a member of An Garda Síochána which is identical to that of [Sgt. McEnery]”. Furthermore it was stated that

there has been no other case where a member “of the rank of Sergeant” convicted of an assault contrary to s. 2 of the Act of 1997

has remained a member of An Garda Síochána. It was not obvious that rank was relevant to the determination of the Commissioner

under Regulation 39 until the statement of opposition was delivered, it is submitted on behalf of Sgt. McEnery.

61. Of particular relevance, in my view, to the application of the principles identified by Fennelly J. in Mallak to the circumstances on

this appeal is the judgment delivered in this Court by O’Donnell J., with whom the other members of the Court concurred, in Kelly v.

Commissioner of An Garda Síochána [2013] IESC 47. The decision being challenged in that case was the decision of the Appeal Board

made under Regulation 35(2) of the 2007 Regulations which, insofar as was relevant, provides:

“An Appeal Board may refuse to consider an appeal where –

(a) . . .

(b) having considered the member’s statement of the ground or grounds of appeal, it is of opinion that the case

made by the member is frivolous, vexatious or without substance or foundation .”

The decision of the Appeal Board in question was to refuse to consider the appeal, stating that it was of opinion that the member’s

case was “without substance or foundation”. In his judgment, O’Donnell J. identified the function of the Appeal Board in exercising its

jurisdiction under Regulation 35(2) and what could be discerned as to how it exercised that function as follows (at para. 40):

“[It] is required to come to the conclusion that there are no conceivable circumstances in which it can be envisaged that

any board of appeal could contemplate the possibility that it might come to a conclusion in some respects different from

that of the Board of Inquiry and the Commissioner. This is a legal test. . . . It is entirely possible that the Appeal Board

correctly and scrupulously applied this precise test before dismissing the appeal. But, the difficulty in this case, which in

my view is fatal, is that neither this Court nor the High Court has any way of knowing that it did so.”

62. O’Donnell J. then went on to state that the Appeal Board was obliged to give reasons for its decision under Regulation 35(2)

stating (at para. 42):

“It is true that there is no appeal from a decision of the Appeal Board, but that only emphasises the fact that this is a

terminating decision in every sense of that word. The only possibility for challenging the decision is by way of judicial

review, and in my view, it is required that the Appeal Board provide reasons for its decision which has the effect of

upholding the dismissal of a garda from the force. I consider that this conclusion follows from an analysis of the

Regulations, particularly when approached in the light of the common law principles outlined so clearly in Mallak. Viewed in

this way it becomes apparent that it is impossible to accept the simplistic analysis of the Regulations which would derive

from the express reference to reasons in Regulation 37(3) the negative conclusion that reasons are not required

elsewhere in the code. Indeed, viewed in the light of the structure and function of the regulations, it makes little sense to

provide for a requirement on an Appeal Board to give reasons for its decision after a full appeal, unless the scheme also

requires the giving of reasons at the earlier stages in the process.”

Regulation 37(3) referred to in that passage requires an Appeal Board to communicate its decision on the appeal and the reasons for

it to the Commissioner and to the member concerned within a specified time. While it was not argued in this case, by reference to

Regulation 37(3), that there is no obligation on the Commissioner to give reasons for a decision made under Regulation 39, such

argument, if advanced, would have to be rejected, adopting the reasoning of O’Donnell J. Indeed, it seems to me that there is an

even stronger case for reasons where the final decision, subject to the consent of the Minister, is made in circumstances where the

member has been given an opportunity of submitting to the Commissioner reasons against the proposed dismissal in accordance with

Regulation 39(4)(c). Making provision for such opportunity would be utterly meaningless if the Commissioner is not obliged to have

regard to the submissions in making what, to use the words of O’Donnell J. “is a terminating decision in every sense of that word”, and

to give reasons for the decision in the light of those submissions.

63. To recapitulate, the decision which I consider is of relevance on the challenge on the grounds of inadequacy of reasons is the

conclusive determination to confirm the proposed decision to dismiss Sgt. McEnery, which was made by the Commissioner at the

second stage of his involvement in the Regulation 39 process, although it cannot be given effect to without the consent of the

Minister. That is the decision which was made following:

(a) the service of the Regulation 39 Notice, and

(b) receipt by the Commissioner of Sgt. McEnery’s submissions.

Further, the conclusions which have been reached earlier in this judgment on the proper interpretation of Regulation 39 and its

application to the circumstances of this case limit, to some extent, the obligation on the Commissioner to rationalise his decision until

the point in time in the process at which he is required to give reasons. First, in addressing the first issue on the appeal, I have

reached the conclusion that, on the proper interpretation and application of Regulation 39 in the circumstances prevailing in this case,

the only material fact for consideration in accordance with Regulation 39(2)(a) is the breach of discipline, being the criminal conduct

constituting the offence under s. 2 of the Act of 1997 for which Sgt. McEnery was convicted and the sentence imposed by the

Circuit Court. Secondly, I have concluded that it may be assumed on the basis of the contents of the Regulation 39 Notice, that up

to the time of the service of the Regulation 39 Notice, which I am satisfied complied with the requirements of Regulation 39(4)(b), the

Commissioner had complied with the requirements of Regulation 39(2)(a), notwithstanding that no reasons had been given by the

Commissioner for the proposed decision to dismiss Sgt. McEnery at the time of such service.

64. It follows that the point in time at which the Commissioner must, in order to comply with the principles of natural and

constitutional justice, give reasons for his decision is when, after giving the member an opportunity to submit to the Commissioner

reasons against the proposed dismissal and, if he receives such submissions, after he has considered them, he makes a conclusive

decision to dismiss. At that point in time, at which the Commissioner issued the letter of 25th March, 2013 in this case, having regard

to the underlying legal and factual situation, in my view, the Commissioner was obliged to give reasons for concluding that –

(a) the breach of discipline, being the conduct constituting the offence under s. 2 of the Act of 1997 for which Sgt.

McEnery was convicted in the Circuit Court with the consequential sentence, was of such gravity that it merited her

dismissal;

(b) the sanction imposed as a result of an inquiry under the 2007 Regulations would not be different to the Commissioner’s

decision to dismiss; and

(c) Sgt. McEnery is unfit for retention in An Garda Síochána.

The Commissioner did not rationalise any of those conclusions in the letter of 25th March, 2013. He merely reiterated his conclusion

that her conduct merited dismissal in accordance with the provisions of Regulation 39. However, as is clear, none of the bases which

had led to the proposal to dismiss Sgt. McEnery was rationalised either in the Regulation 39 Notice.

65. Obviously, as with the decision to dismiss, the reasons for the decision must be consistent with the proper application and

interpretation of Regulation 39. Notwithstanding that the submission made by Sgt. McEnery as to what constitutes material facts for

the purpose of Regulation 39(2)(a) in this case has been rejected in this judgment, there remains a void as to the basis on which the

Commissioner rationalises the conclusions outlined in the next preceding paragraph and, in particular, the reasons for his conclusions

as to the gravity of the breach of discipline and that Sgt. McEnery is unfit for retention in An Garda Síochána. As with the

circumstances in the Kelly case, it cannot be said that the issue involved in this case is so self-evident and narrow that the mere fact

of the decision discloses the reason. Accordingly, I consider that the decision of the Commissioner to dismiss Sgt. McEnery should be

quashed on the ground of failure to give adequate reasons for the decision.

66. Following the making of the order to quash the Commissioner’s decision on that ground, it will be open to the Commissioner to

reconsider the position of Sgt. McEnery in accordance with Regulation 39 of the 2007 Regulations.

Issue three: discriminatory/disproportionate treatment

67. The case advanced on behalf of Sgt. McEnery on this point is that Kearns P. did not adequately consider her claim that she had

been treated differently, to her detriment, from similar cases concerning other members of An Garda Síochána who had been

convicted of an offence. As is recorded earlier, Kearns P. was not satisfied that Sgt. McEnery had made out any factual basis for that

proposition. It would appear from the documentation before this Court that the only evidence on this point which was before the High

Court related to an application made to the High Court by Sgt. McEnery seeking discovery against the Commissioner, that is to say, a

grounding affidavit sworn by Sgt. McEnery and the replying affidavit sworn on behalf of the Commissioner, and also the affidavit of

discovery sworn on foot of the order of the High Court, which directed discovery in relation to members of An Garda Síochána who

had been convicted of assault in the previous five years.

68. In their submissions, counsel for Sgt. McEnery, in essence, make two complaints in relation to the finding of Kearns P. on this

issue: that he did not have regard to the limited nature of the discovery order; and that in reaching his decision he did not have

regard to the affidavits filed on the application for discovery. As regards the first complaint, it has absolutely no merit whatsoever.

Apparently, discovery had been sought in relation to any member who had been convicted of any offence in the previous five years,

but Kearns P. limited the discovery to what counsel for the Commissioner suggest was relevant, namely, members who had been

convicted of assault in the previous five years. That order, which was not appealed, was complied with. That is the end of that

complaint.

69. Before addressing the second complaint, it is appropriate to record that in his judgment Kearns P. considered what the affidavit of

discovery had disclosed in relation to members who had been convicted of assault within the previous five years and it was on the

basis of that consideration that he concluded that Sgt. McEnery had not made out any factual basis for holding that her treatment

had been discriminatory or disproportionate in comparison with any other case. In relation to the second complaint, counsel for Sgt.

McEnery draws the attention of this Court, in particular, to one incident covered in the affidavits leading to the discovery order. This

related to the conviction by a jury at Dublin Circuit Court of a member of An Garda Síochána contrary to s. 2 of the Act of 1997 on

6th December, 2004. It is contended that the circumstances of that conviction were “on all fours” to Sgt. McEnery’s situation and it

is pointed out that the member convicted in 2004 is still a serving member. In reliance on the replying affidavit sworn on behalf of the

Commissioner on the application for discovery, counsel for the Commissioner dispute the contention that the situation of the member

convicted in 2004 was the same as that of Sgt. McEnery. One obvious difference is that the conviction occurred before the Act of

2005 came into force and, consequently, before the 2007 Regulations came into force. As is pointed out on behalf of the

Commissioner, there is no evidence of any decision by the then Commissioner regarding consideration of a summary dismissal of the

member in question. I consider that the approach adopted by Kearns P. in not having regard to the evidence contained in the

affidavits filed in relation to the application for discovery, which it is contended on behalf of Sgt. McEnery he should have had regard

to, was correct.

70. Accordingly, I find on the third issue that Sgt. McEnery has not established that the decision of the Commissioner contravened

natural or constitutional justice in treating her in a manner which is discriminatory and disproportionate in comparison to the treatment

of other members of An Garda Síochána convicted of assault.

Summary of conclusions

71. On the issues identified earlier, I have come to the following conclusions:

(a) The breach of discipline relied on by the Commissioner being the criminal conduct constituting the offence under s. 2

of the Act of 1997 of which Sgt. McEnery was convicted, the only material facts for the purposes of the proper

application of Regulation 39(2)(a) of the 2007 Regulations were the facts of the conviction of Sgt. McEnery of that

offence with the consequential imposition of the sentence on her by the Circuit Court. Accordingly, the decision of the

Commissioner was not ultra vires Regulation 39 by the reliance by the Commissioner solely on those facts for the purpose

of complying with the requirement of Regulation 39(2)(a) that he should not be in doubt as to the material facts and for

the purpose of assessing whether the facts and the breach of discipline were of such gravity as to merit dismissal.

(b) By failing to give adequate reasons for his decision to confirm the proposed decision to dismiss Sgt. McEnery from An

Garda Síochána following receipt of the submissions made on her behalf, as set out in the letter of 25th March, 2013, the

Commissioner acted contrary to his implied duty under Regulation 39 and in breach of the principles of natural and

constitutional justice. Accordingly that decision should be quashed.

(c) Sgt. McEnery has not established that the decision of the Commissioner contravened natural and constitutional justice

in treating her in a manner which is discriminatory and disproportionate in comparison to the treatment of other members

of An Garda Síochána convicted of assault.

Order

72. I propose that there should be an order quashing the decision of the Commissioner as set out in the letter of 25th March, 2013

confirming the proposed decision to dismiss Sgt. McEnery from An Garda Síochána, as was held by the Court of Appeal, but on

different grounds. The order quashing the decision is to be made on the grounds that no adequate reasons were given for that

decision.