D.F and Another v Garda Commissioner and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 14 January 2013
• Neutral Citation: [2013] IEHC 5
• Court: High Court
• Date: 14 January 2013

[2013] IEHC 5

THE HIGH COURT

[No. 8876 P/2012]

F (D) v Garda Commissioner & Ors

BETWEEN/

D.F. (SUING BY HIS TESTAMENTARY GUARDIAN AND NEXT FRIEND, K.M.)

PLAINTIFF

AND

GARDA COMMISSIONER, MINISTER FOR JUSTICE, EQUALITY AND DEFENCE, ATTORNEY GENERAL AND IRELAND

DEFENDANTS

MENTAL HEALTH ACT 2001 S12

EUROPEAN CONVENTION OF HUMAN RIGHTS ACT 2003

UNITED NATIONS CONVENTION ON THE RIGHTS OF PEOPLE WITH DISABILITIES 2006

MCD (J) v L (P) & M (B) 2010 2 IR 199 2010 1 ILRM 461 2009/34/8411 2009 IESC 81

D (M)(A MINOR) v IRELAND & ORS 2012 1 IR 697 2012 IESC 10

CONSTITUTION ART 40.4.1

CONSTITUTION ART 40.3.2

KINSELLA v GOVERNOR OF MOUNTJOY PRISON 2012 1 IR 467 2011/31/8437 2011 IEHC 235

CHARTER OF FUNDAMENTAL RIGHTS ART 51(2)

CONSTITUTION ART 29.6

COURTS ACT 1988 S1

SHERIDAN v KELLY 2006 1 IR 314

COURTS ACT 1988 S1(1)

COURTS ACT 1988 S1(3)

COURTS ACT 1988 S1(3)(B)

COURTS ACT 1988 S1(3)(C)

MENTAL HEALTH ACT 2001 S12

BRADLEY & ORS (T/A MALCOMSON LAW) v MAHER UNREP CLARKE 31.7.2009 2009 IEHC 389 2009/6/1261

RSC O.36 r7

LIBEL ACT 1792

SALMOND JURISPRUDENCE 11ED P68

DPP v CONROY 1986 IR 460

DPP v LYNCH 1982 IR 64

CONSTITUTION ART 38.1

CONSTITUTION ART 38.5

WALSH v FENNESSY 2005 3 IR 516

OFFENCES AGAINST THE STATE ACT 1939 S30

Practice and procedure - False imprisonment and intentional trespass - Garda Siochana - Role of trial judge - Role of jury - Damages - Determination of legal questions - Courts Act 1988

Facts: The Court considered the circumstances where a plaintiff sued for assault, battery, negligence and breach of constitutional rights, including false imprisonment and intentional trespass to the person, whether the ensuing trial had always to be with a jury. The plaintiff alleged that he had been unlawfully arrested by the Garda Siochana. The Court considered the provisions of s. 1 Courts Act 1988 and the provisions of Order 36 rule 7 Rules of the Superior Court.

Held by Hogan J. that the validity of an arrest fell directly within the province of a judge alone. The admissibility of evidence was a matter for the trial judge alone and not the jury. The legal issues in the trial were for the trial judge to determine and all other matters including the question of damages was for the jury. The plaintiff was entitled to jury trial in respect of the issues contained in his statement of claim. The Court would make specific direction as to the matters to be determined by the trial judge.

1 1. Where a plaintiff sues for false imprisonment and intentional trespass to the person along with a claim for negligence, must the ensuing trial always be with a jury? This is the significant procedural point which arises on the defendants' application by motion to this Court for directions as to the mode of trial of proceedings which involves claims by the plaintiff for damages for false imprisonment and negligence.

2 2. The issue arises in the following way. The plaintiff is a 27 year old young man who, according to his family, is severely autistic. His testamentary guardian, Ms. K.M. - who is herself a special needs assistant - has sworn an affidavit to the effect that the plaintiff is extremely intellectually disabled and that he has a very limited ability to communicate. When not attending an adult learning disability centre, Mr. F. spends much of his days looking at horses as they gambol in a field adjoining his grandparents' house. He rarely moves from this area when he is at home and repetitive behaviour of this kind is, apparently, a feature of his severely autistic condition. In their defence the State defendants plead that they have no direct knowledge of these disabilities and await direct thereof.

3 3. The incident which gave arise to these proceedings occurred on 24 ^th September, 2010. The plaintiff's testamentary guardian, Ms. M., contends that Mr. F. had taken up his habitual position outside his grandparents' house when he was unlawfully arrested by members of An Garda Síochána at about 5pm in the evening and brought to a local Garda station. It is contended that no effort was made by the Gardaí to speak with either his mother or father, both of whom lived close by. I should pause here to say that the plaintiff's mother sadly died in January, 2012. While she was not living with the plaintiff's father at the time of her death, both parents were actively involved in caring for him.

4 4. According to Ms. M., the arrest of Mr. F. and his detention in unusual surroundings caused him acute and unusual distress. The custody records show that the plaintiff had been detained for just under an hour and that he had been arrested under s. 12 of the Mental Health Act 2001. He was released when his father - a registered medical practitioner - attended (along with the plaintiff's mother) at the Garda station and explained that he suffered from severe autism.

5 5. The defence filed by the State defendants does not dispute a good deal of this. It is contended, however, that a member of the public saw the plaintiff chase two women with a large stick or a branch of a tree in the general vicinity of the plaintiff's grandparent's house, although neither woman was actually struck. The Gardaí were then alerted and, on their arrival, following a minor altercation, the plaintiff was then identified as the individual who had given chase to the two women. When one of the Gardaí involved, a Garda Fallon, attempted to speak to Mr. F., he realised that he was suffering from a mental condition, as he was unable to get Mr. F.'s name or any other pertinent details. Garda Fallon arrested Mr. F. pursuant to s. 12 of the Mental Health Act 2001. Mr. F. was then placed in handcuffs and conveyed by the patrol car to the local Garda Station.

6 6. Upon arrival at the Garda station at around 5.10pm, the Gardaí endeavoured to contact some local general practitioners, but to no avail. Recorded messages in both cases suggested that the general practitioners in question would come on duty again at 6 pm. It appears, however, that another member attached to the station recognised the plaintiff, although he could not immediately recall his name. This member then made appropriate inquiries and, having satisfied himself as to the plaintiff's identity, drove to the plaintiff's house where he spoke with the plaintiff's mother and informed her of the arrest.

7 7. The plaintiff's mother then arrived at the station shortly after 5.30 p.m. and comforted her son. The member in charge, a Sergeant Galvin, was informed by her that her son suffered from severe autism. The plaintiff's father then arrived about twenty minutes later. On being informed that the plaintiff's father was a registered medical practitioner who could confirm that the plaintiff did indeed suffer from severe autism, he was released by Sergeant Galvin at about 6.05 p.m.

8 8. The plaintiff contends that he was subjected to inhuman and degrading treatment by being subjected to "unjustified use of restraints designed to and which did "in fact cause [him] additional and unnecessary suffering." This, however, is expressly denied by the defendants.

9 9. This is the general factual background to the proceedings. Before determining questions as to the mode of trial, is now necessary to examine the ambit of the plaintiff's pleadings. The relief sought in the plaintiff's general endorsement of claim takes the form of claims for declaratory relief and damages. The first two declarations sought are pleas, in effect, that the plaintiff's arrest and detention were both unlawful.

10 10. So far as the damages claim is concerned, the major claims are for damages in respect of the nominate torts of false imprisonment and assault and battery. Damages are also sought for negligence and breach of duty. The claims for damages for breaches of constitutional rights - liberty, bodily integrity and the privacy - substantially replicate the claims embraced in the nominate torts which have been pleaded on the plaintiff's behalf, even if it is also allowed that the breadth and scope of these claims is perhaps not necessarily as confined as that permitted by the common law in respect of the nominate torts.

11 11. There are also claims for damages for breach of the plaintiff's rights under the European Convention of Human Rights Act 2003 ("the 2003 Act"); for breaches of the plaintiff's rights under the Charter of Fundamental Rights of the European Union and under the United Nations Convention on the Rights of Persons with Disabilities 2006 ("the 2006 UN Convention"). For present purposes, however, the latter three claims can safely be discounted for the following reasons.

12 12. First, the claims under the 2003 Act proceed on the implied premise that the provisions of the European Convention of Human Rights have direct effect in Irish law, the objective breach of which sounds in damages. The Supreme Court has, however, confirmed that the ECHR does not have direct effect in Irish law in this sense: see, e.g., McD v. L [2009] IESC 71 and MD v. Ireland [2012] IESC 10, [2012] 2 I.L.R.M. 305. Moreover, s. 3(2) makes it plain that any claim for damages under the 2003 Act can only be claimed "if no other remedy in damages is available". But is plain that many other claims for damages are available in this State to a person who claims that they have been unlawfully arrested and detained: these remedies not only include the nominate torts of false imprisonment and assault and battery, but also the action for damages for breaches of constitutional rights such as personal liberty (Article 40.4.1) and the person (Article 40.3.2). If the plaintiff was, in fact, subjected to inhuman and degrading treatment - a claim which, in fairness, I should again point out is emphatically denied by the defendants - then he could sue for damages for breach of his...