O Callaghan v Ireland and the Attorney General

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Faherty
• Judgment Date: 14 March 2019
• Neutral Citation: [2019] IEHC 782
• Docket Number: [2015 No. 1675 P.]
• Date: 14 March 2019

[2019] IEHC 782

THE HIGH COURT

Justice Faherty

[2015 No. 1675 P.]

BETWEEN

MICHAEL O'CALLAGHAN

PLAINTIFF

AND

IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

Damages – Miscarriage of justice – Breach of constitutional rights – Plaintiff seeking damages – Whether the defendants were liable to the plaintiff in damages

Facts: The plaintiff, Mr O’Callaghan, issued proceedings on 27th February, 2015, claiming that the defendants, Ireland and the Attorney General, were liable to him in damages. The plaintiff sought damages on three grounds: (i) damages for a miscarriage of justice; (ii) damages for breach of constitutional rights; and (iii) damages pursuant to s. 3(2) of the European Convention on Human Rights Act 2003. The claim for damages under (i) was said to arise by reason of the plaintiff’s wrongful conviction from the error of the trial judge in failing to direct his acquittal. The claim for damages under (ii) was said to arise from what the plaintiff alleged was the defendants’ failure to afford him a trial with reasonable expedition. Under (iii), the plaintiff claimed damages for miscarriage of justice and delay.

Held by Faherty J that the plaintiff had not established a “general” requirement at common law, or under the Constitution, to provide compensation for persons like the plaintiff who have spent time in custody while criminal proceedings are ongoing even where those proceedings are ultimately discontinued against an individual by virtue of a successful outcome on appeal. Faherty J was not satisfied that it had been established that there had been a sufficient level of culpability on the part of the State such as deprived the plaintiff of his constitutional right to an expeditious trial, and which would warrant an award of damages. Faherty J held that the claim in damages as made under the 2003 Act was not properly constituted.

Faherty J held that the plaintiff’s claims would be rejected.

Claims rejected.

JUDGMENT of Ms. Justice Faherty delivered on the 14th day of March 2019

1 The plaintiff's claim is that the defendants are liable to him in damages for miscarriage of justice and/or in the alternative for breach of his constitutional rights and/or breach of his rights under the European Convention on Human Rights (“the Convention”).

Background

2 The plaintiff was prosecuted in Cork Circuit Court in respect of offences arising out of the robbery of a post office in Cork City on 26th March, 2009. He was arrested on 14th April, 2009 and charged with robbery on the following day. He was brought before Cork District Court on 16th April, 2009 and was remanded in custody. On 11th June, 2009, he was further charged with a firearms offence. The book of evidence was served on 16th June, 2009. The plaintiff was arraigned on 8th February, 2011 and pleaded not guilty. His trial ran in Cork Circuit Court before a judge and jury between 8th and 15th February, 2011.

3 There were three principal strands of evidence against the plaintiff which were adduced in evidence before the jury:

(a) Eye witness evidence of a Mr. B.G. who had given a statement to gardaí that he saw one of the raiders take off his balaclava and throw it into the canal. This witness did not give clear evidence as to his recollection of events on the date of the robbery. Upon application to the trial judge, his statement was admitted under s. 16 of the Criminal Justice Act, 2006.

(b) Statements of the plaintiff, in particular his failure to tell gardaí that he had visited the post office earlier on the date of the robbery.

(c) DNA evidence relating to the balaclava that was found at the canal. This DNA evidence connected the plaintiff to the balaclava (although it also connected two other persons to the balaclava).

4 At the close of the prosecution case, the plaintiff applied for a directed acquittal on the basis that he had no case to answer. The trial judge refused to direct an acquittal. The matter was left to the jury. On 15th February, 2011, the plaintiff was convicted. He was duly sentenced to ten years' imprisonment.

5 On 18th February, 2011, the plaintiff filed a notice of appeal against his conviction and filed his grounds of appeal on 24th February, 2011. The Court of Criminal Appeal requisitioned the trial transcript on 9th March, 2011 and it was received on 30th March, 2011. It was approved by the trial judge on 7th April, 2011. It was furnished to the plaintiff's solicitors on 26th April, 2011. On 4th July, 2011, the plaintiff's solicitors lodged a motion to amend the grounds of appeal. This motion came too late for the matter to appear in the court's case management list and so was adjourned to the 28th November, 2011 case management list.

6 On 28th November, 2011, the plaintiff amended his grounds of appeal by consent, with the leave of the Court of Criminal Appeal. The plaintiff's appeal submissions were filed on the same date. This was the trigger for the matter to get into the Court of Criminal Appeal's list to fix dates.

7 The appeal duly appeared in the list to fix dates on 5th December, 2011. On that date it was fourteenth in the list of conviction appeals of which three appeals got hearing dates. In the March 2012 list, the plaintiff's appeal was listed eleventh. No case in the list received a hearing date on that occasion. At the next list to fix dates on 14th May, 2012, the appeal was again listed eleventh in the list of conviction appeals of which one was given a hearing date. In the list for 16th July, 2012, the plaintiff's appeal was tenth on the list. No case in the list got a hearing date on that occasion. By the next list to fix dates on 17th December, 2012, the appeal was sixth of the conviction cases of which four received dates for hearing. On 11th March, 2013, the appeal was fifth in the list and it secured a hearing for 18th April, 2013.

8 The appeal was duly heard by the Court of Criminal Appeal on 18th April, 2013 and judgment was reserved. Judgment was delivered on 31st July, 2013 and it was ordered that the conviction be quashed on the ground that the case should not have been allowed to go to the jury based on the evidence. The judgment of the Court was delivered by Murray J. who found as follows:

“41…. the Court is satisfied that there was no evidence on which a jury properly directed could rationally find beyond reasonable doubt that one of those persons rather than another was the person who was wearing [the balaclava] at the time of the robbery.

42. In the course of his submissions to the trial judge that the case should not be allowed to go to the jury counsel for the defence submitted that there was not sufficient evidence to satisfy any properly directed jury to reach a conclusion beyond reasonable doubt that the person whose cells were found on the garment was the person who wore the garment during the commission of the offence. It is true that tis submission was a detail among many other submissions made in relation to the evidence.

43. For the reasons stated above, the Court is satisfied that there was not a sufficient evidential basis from which a jury, properly directed, even if they accepted the evidence before it, could conclude beyond reasonable doubt that the applicant rather than any of the other, unnamed, persons who had been in contact with the balaclava material committed the offence.

44. As already explained, the other evidence was not a basis upon which a jury could link or identify the applicant as a person who committed the offence. Insofar as any inferences could be drawn from any of that evidence it was certainly too tenuous a basis for concluding that the applicant was one of the persons who committed the offences.

45. For these reasons the Court is of the view that the case should not have been allowed to go to the jury on the basis of the evidence, in particular the evidence, and therefore that the verdict for the jury should be considered unsafe and set aside.”

9 The Court of Criminal Appeal did not direct a retrial.

10 At the time of his arrest in 2009, proceedings were pending against the plaintiff in respect of an unrelated matter. He was sentenced to three years' imprisonment in relation to this unrelated matter on 19th June, 2009. He appealed that sentence. On 10th May, 2010 the sentence was affirmed by the Court of Criminal Appeal but backdated to 7th May, 2009. That sentence concluded on 7th August, 2011. There was thus an overlap of over five months between the period the plaintiff spent in custody in relation to the unrelated matter and the period spent in custody by reason of his conviction and sentence following the trial in February, 2011. By the time of his release by the Court of Criminal Appeal on 31st July, 2013, the plaintiff had spent 23 months, three weeks and three days in custody in respect of the conviction quashed by the Court of Criminal Appeal on 31st July, 2013, inclusive of the five-month overlap referred to above.

11 The within proceedings issued on 27th February, 2015.

12 The plaintiff seeks damages on three grounds:

(i) Damages for a miscarriage of justice;

(ii) Damages for breach of constitutional rights;

(iii) Damages pursuant to s. 3(2) of European Convention on Human Rights Act, 2003 (“the 2003 Act”).

13 The claim for damages under (i) is said to arise by reason of the plaintiff's wrongful conviction from the error of the trial judge in failing to direct his acquittal. The claim for under (ii) is said to arise from what the plaintiff alleges was the defendants' failure to afford him a trial with reasonable expedition. Under (iii), the plaintiff claims damages for miscarriage of justice and delay.

Alleged “miscarriage of justice”

The plaintiff's submissions, in summary

14 In essence, the plaintiff contends that the judge's failure to accede to the application for a directed acquittal, and his subsequent conviction, as a result of which he was...