High Court of Ireland Decisions

Judgment Title: Lockwood -v- Ireland & Ors

Neutral Citation: [2010] IEHC 430


High Court Record Number: 2006 2304 P

Date of Delivery: 12/10/2010

Court: High Court

JUDGMENT of Kearns P. delivered the 10th day of December, 2010

The plaintiff was the complainant in a prosecution for rape brought against J.W. by the Director of Public Prosecutions. The accused was arrested on the 22nd July, 1999 and the case was ultimately heard by the Central Criminal Court in May, 2003. It emerged during the course of the evidence at trial that, as a consequence of the unlawful arrest of J.W., certain admissions made by J.W. whilst in garda custody could not be placed before the jury. This difficulty arose because J.W. was arrested pursuant to the common law power of arrest for rape. However, at the time of the arrest, s. 3 of the Criminal Law Act 1997 had abolished the distinction between felonies and misdemeanours with the consequence that a garda member no longer had any common law power to arrest in respect of felonies. Thus whilst J.W. could have been arrested under s. 4 of the Criminal Justice Act 1984, this power was not exercised by the arresting garda on the occasion of the arrest. The learned trial judge (O’Higgins J.) thus held that J.W. was held in illegal custody in breach of his constitutional right to liberty and that any evidence obtained during the course of this illegal detention was, as a result, inadmissible in the proceedings before the Court.

The plaintiff understandably felt extremely aggrieved that, having been subjected to rape, and having undergone the ordeal of a trial in which she gave evidence, the prosecution’s case collapsed as a result of such a basic error on the part of the arresting garda.

As a result these proceedings were commenced by plenary summons on the 26th May, 2006. In the proceedings, the plaintiff claims damages arising from the alleged negligence and breach of duty of the defendants, notably the servants or agents of the third named defendant, in invoking a power of arrest that did not exist at the time of the purported arrest. The plaintiff asserts that the State has failed to vindicate her constitutional right to bodily integrity and to ensure that justice was achieved in her case.

Following the bringing of the proceedings, the defendants brought a motion to this Court for an order directing the trial of preliminary issues which effectively request that the Court should dismiss these proceedings on two grounds as follows:-

(1) The time limit for bringing the claim in question is statute barred by virtue of the Statute of Limitations 1957 as amended; and

(2) In the absence of mala fides in the performance of their investigative and prosecutorial functions, the Garda Síochána cannot be held liable in damages to the plaintiff in circumstances such as arose in the present case.

In relation to any supposed immunity from suit on the part of the Garda Síochána, counsel on behalf of the plaintiff submitted that where a citizen’s constitutional rights are infringed, a right to seek damages for such a breach exists when no other effective or sufficient remedy may be found (see The State (Quinn) v. Ryan [1965] I.R. 70; Byrne v. Ireland [1972] I.R. 241; and Meskell v. Córas Iompair Éireann [1973] I.R. 121).

Counsel further submitted that there was no doctrine of immunity available to the Garda Síochána which would afford a shield to them in all circumstances. It was submitted that the dictum of Costello P. in W. v. Ireland (No. 2) [1997] 2 IR 141 had been overtaken by more recent cases, including D.P.P. v. Cash [2007] IEHC 108; Hanahoe v. Hussey [1998] 3 IR 69; Gray v. Minister for Justice [2007] 2 IR 654; and Shortt v. Commissioner of An Garda Síochána [2007] 4 IR 587. Counsel for the plaintiff also placed reliance upon the recent decision of the European Court of Human Rights in McFarlane v. Ireland (no. 31333/06, 10 September 2010) as supporting the proposition that a claim for damages was sustainable on facts such as those which arose in the instant case.

A number of English cases were also opened to the Court, including Desmond v. The Chief Constable of Nottinghamshire Police [2009] EWHC 2362 (QB). While successive decisions of the House of Lords beginning with Hill v. Chief Constable of West Yorkshire [1989] AC 53 had held, as a matter of public policy, that police were immune from actions for negligence in respect of their activities in the investigation and suppression of crime, Wyn Williams J. observed as follows in Desmond at para. 42:-

“It seems to me that the following principles can be distilled from the authorities cited above. First, the police are immune from an action in negligence at the suit of an individual if the damage complained of was caused by an act or omission in furtherance of the investigation or suppression of crime (the core principle in Hill). Second, if the core principle is not engaged a duty of care may be imposed upon the police upon ‘ordinary principles’ if the police are directly involved in causing actionable damage to an individual. Third, the police can be held liable in negligence for damage (including pure economic loss) if they have assumed a responsibility to the individual in question to act with reasonable care.”

Finally, counsel argued that in the case of Osman v. United Kingdom [1998] 29 EHRR 245, the European Court of Human Rights held that an immunity which the British police enjoyed from suit was incompatible with the guarantee of a fair hearing provided by Article 6 of the European Convention on Human Rights. Counsel further asserted that the present case was not one which could be seen as having the effect of encouraging defensive policing, but was instead a straightforward instance of negligence principles which every garda about to effect an arrest must be presumed to know. Nor were the present proceedings a collateral attack upon the verdict or acquittal. The plaintiff was not seeking to overturn the verdict in the criminal proceedings, but rather to obtain a remedy from the Court in respect of the State’s failure to ensure a proper arrest and trial.

SUBMISSIONS ON BEHALF OF THE DEFENDANTS
Counsel on behalf of the defendants adverted to three relevant dates in relation to the argument that the plaintiff’s claim was statute barred. The date of arrest of the accused was the 22nd July, 1999. The ruling of the Central Criminal Court to the effect that the arrest was unlawful was made on the 28th May, 2003. The plenary summons only issued on the 26th May, 2006. It was submitted on behalf of the defendants that time should be deemed to run from the date of the impugned arrest in 1999. If that contention was correct, the present proceedings had been brought outside the basic limitation period for a civil negligence claim.

In relation to the potential liability to suit of the Garda Síochána, it was the defendants’ submission that no liability arose because of the absence of a duty of care to the plaintiff in the particular circumstances rather than any immunity. Counsel submitted that the observations of Clarke J. in Osbourne v. Minister for Justice [2009] 3 IR 89 made it clear that, absent mala fides, a person against whom a power of arrest or search is exercised cannot successfully sue the gardaí for damages.

Counsel also noted various dicta in Glencar Exploration plc v. Mayo County Council (No. 2) [2002] 1 IR 84; Kennedy v. Law Society of Ireland (No. 4) [2005] 3 IR 228; and Keating v. Crowley [2010] IESC 29 in support of the argument that no cause of action for negligence lies against a public body in the absence of mala fides. A claim based on a complaint that there had been a failure to secure a conviction of an accused person was an entirely novel claim and it was submitted that no duty of care to prevent such an occurrence taking place could be said to exist.

Counsel for the defendants argued that, while every citizen is entitled to a fair system for the investigation of criminal offences, this could never amount to a guarantee of a perfect system, or one that would be error free. Equally, the State could not guarantee that every person who commits a crime would be successfully convicted at the end of a criminal trial. In this regard, counsel stressed that recognition of this fact was evidenced by the fact that there is a tort of malicious prosecution but not a tort of negligent prosecution.

Counsel also relied upon the judgment of Costello P. in W. v. Ireland (No. 2) [1997] 2 IR 141 as providing compelling public policy reasons why the Court should conclude that no existence of a duty of care arose as the result of the particular performance of a public function. Such had been the view of the House of Lords in Hill v. Chief Constable of West Yorkshire [1989] AC 53 and counsel submitted that the core principle of that case represents the law in this jurisdiction and had not been diluted by subsequent case law. In fact, the principles established in Hill were upheld by the House of Lords in Brooks v. Commissioner of Police of the Metropolis & Others [2005] 1 WLR 1495. In that case, the House of Lords held that, as a matter of public policy, police did not generally owe a duty of care to victims or witnesses in respect of their activities when investigating crime.

While it was true that the case of Osman v. United Kingdom [1998] 29 EHRR 245 suggested that striking out a tort claim against the police amounted to a violation of Article 6 of the European Convention on Human Rights, the decision in question was less than authoritative. In Z. & Ors. v. The United Kingdom [2002] 34 EHRR 3, the same court accepted that its ruling in Osman was based on an understanding of the law of negligence “which has to be reviewed in the light of the clarifications subsequently made by the domestic courts and notably by the House of Lords”.

Counsel concluded by noting that the law did not purport to deprive the plaintiff of a remedy, given that at all times it was open to the plaintiff to sue the accused directly for damages in a civil case.

DISCUSSION AND DECISION
The recent decision of the High Court (Clarke J.) in Osbourne v. Minister for Justice [2009] 3 IR 89 is of particular interest in determining whether or not a cause of action arises against the Garda Síochána in the absence of mala fides in the performance of their duties and functions. In that case, Clarke J. stated (at pp. 96-97):

“While it (The People (Attorney General) v. O’Brien [1965] I.R. 142) is concerned with the admissibility of evidence there is no reason, in my view, not to apply the overriding principle to the question of the consideration of any other consequences of reliance upon an invalid warrant. I am therefore satisfied that no claim in damages (whether for breach of constitutional rights or in tort) can be brought in respect of actions taken on foot of the warrant which though apparently valid was technically infirm, but was not relied upon in circumstances which amounted to, as Walsh J. put it in O’Brien, a ‘deliberate or conscious violation’ of the rights concerned. There could, of course, be a deliberate or conscious violation of rights where a false basis was put forward for obtaining the warrant or where a basis was put forward which, while correct on the facts, was one which the person seeking the warrant knew did not justify the grant of the warrant. Furthermore it is implicit from the judgments in O’Brien that reliance on a warrant which is subject to a technical defect but where that defect was known, prior to the execution of the warrant, by those involved in its execution might also amount to a deliberate or conscious violation of rights. Such an overall view of the entitlement to damages arising from the consequences of the execution of a warrant which is technically defective is, in my view, consistent with the jurisprudence of the courts in the analogous area of breach of statutory duty by officials or others charged with carrying out public functions. In such circumstances it is now well settled that damages do not arise in the absence of a deliberate and knowing breach of statutory obligation.”

“As a general proposition, it can safely be said that, apart from exceptional circumstances, a body such as the first respondent, carrying out a public function in pursuance of a public duty, is not liable to a private individual in tort unless the authority, in so acting, has committed the tort of misfeasance in public office. I will be explaining this tort in more detail later on in this judgment but subjective mala fides is an essential feature of it. To allow damages to be awarded for breach of an alleged duty of care owed to the individual on the basis of what a reasonable person might have done (and therefore an objective test) would be to undermine the clear limits attached to the tort of misfeasance in public office.”

“There are further compelling reasons why, in the public interest, the duty claimed by the plaintiff in this action should not be allowed. If a duty under the Act of 1965 exists it must logically follow (a) that the Attorney General would be under a similar duty in respect of any prosecutorial functions conferred on him by s. 5 of the Prosecution of Offences Act 1974 and (b) that in exercising his prosecutorial functions under that Act, the Director of Public Prosecutions would owe a like duty to all victims of crimes in the cases in which he is considering the institution of prosecution. Because of the inhibiting effect on the proper exercise by the Attorney General and the Director of Public Prosecutions of their prosecutorial functions, it would be contrary to the public interest that a duty of care at common law be imposed on them. So to conclude is not to submit to a ‘flood gates’ argument of doubtful validity, it is to accept the logical consequences, should the duty of care at common law be imposed in the execution by the Attorney General of his functions under the Act of 1965.”

I am satisfied that no action arises in the circumstances of this case for negligence against the gardaí in the absence of mala fides. I am satisfied also that within tort law a duty of care does not arise such as would create an entitlement to damages arising from the manner in which the gardaí conduct an investigation. As Barrington J. pointed out in McDonnell v. Ireland [1998] 1 I.R. 134 (at p. 148):

“[C]onstitutional rights should not be regarded as wild cards which can be played at any time to defeat all existing rules. If the general law provides adequate cause of action to vindicate a constitutional right it appears to me that the injured party cannot ask the court to devise a new and different cause of action.”

“It is undoubtedly the case that in certain circumstances the State is liable to pay compensation to individuals for breach of their constitutional rights. This may be particularly so when the State at the time the damage was caused, was acting unlawfully and with mala fides or in misfeasance of public office.”

I have no hesitation therefore in granting the relief sought by the defendants in respect of this particular issue and holding that the plaintiff’s claim should be dismissed.

Insofar as the Statute of Limitations point is concerned, I would hold with the plaintiff’s contention that the clock could not be deemed to have commenced to run on any cause of action she might have had until such time as the plaintiff became aware of the particular error which gave rise to her complaint.