Garda Commissioner appeals decision on sacked sergeant

The Garda Commissioner has appealed to the Supreme Court a ruling which quashed its decision to dismiss a Waterford-based Garda sergeant who was convicted of assault.

Sgt Martha McEnery had last October won a Court of Appeal challenge against the Commissioner’s decision to summarily dismiss her from the force.

The decision came after Sgt McEnery was given a four-month suspended sentence in 2011, following a conviction of assault during the arrest of Anthony Holness in Waterford in January 2010.

Following her conviction, the Garda Commissioner found she had breached the 2007 Garda Síochána Discipline Regulations and summarily dismissed her.

Sgt McEnery had challenged that decision to the High Court, arguing the simple fact of a criminal conviction cannot constitute grounds for summary dismissal.

She claimed her treatment was discriminatory or disproportionate compare to any other case and that other gardaí convicted of assault were not dismissed. She also claimed that the Commissioner failed to give adequate reasons for the decision.

The High Court dismissed her challenge, which she appealed.

Breach of discipline

The Court of Appeal had then ruled the commissioner had not acted lawfully within the regulations in dismissing Sgt McEnery without giving separate consideration to the facts surrounding her breach of discipline.

The appeal court allowed Sgt McEnery’s appeal because the commissioner had treated her criminal conviction as being such that little or no further consideration was required in deciding to summarily dismiss her.

The case has been appealed to the Supreme Court. In advance of the appeal being heard by the Supreme Court, an issue had arisen.

The commissioner argued before the Supreme Court Sgt McEnery had not stated any additional grounds as part of her case in documents submitted to the Supreme Court which had later been included in written submissions.

In a written ruling on a preliminary point Mr Justice Clarke, sitting with Mr Justice John Mac Menamin and Mr Justice Peter Charleton, granted Sgt McEnery permission to rely on additional grounds in the appeal.

The judge said the points concerned had been properly before the Court of Appeal and submissions had been made at an early stage in the Supreme Court.

However “it should not be presumed that similar latitude will continue to be given in the future,” Mr Justice Clarke said.

“Parties and their advisers need to address the completion of the forms required in the context of an application for leave to appeal under the new constitutional regime with considerable care. It cannot be assumed that any omission in that regard will, necessarily, be capable of correction,” the judge added.

He said that following recent changes to the Constitution, the court was still in a transitional phase between its former and its new jurisdiction.

“The precise and detailed practical consequences for the conduct of appeals in the Supreme Court have yet to be fully worked out,” the judge added.