D.F (Suing by his Testament Guardian & Next Friend K.M v Garda Commissioner and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 11 June 2013
• Neutral Citation: [2013] IEHC 312
• Court: High Court
• Date: 11 June 2013

[2013] IEHC 312

THE HIGH COURT

[No. 8876 P/2012]

F (D) v Garda Cmsr & Ors (No 2)

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 (NO.2)

DEFENDANTS

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27

MENTAL HEALTH ACT 2001 S12

F (D) v GARDA COMMISSIONER (NO 1) UNREP HOGAN 14.1.2013 2013 IEHC 5

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(3)(B)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(3)(C)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(1)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(2)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(3)

CIVIL LAW (MISCELLANEOUS PROVISIONS) ACT 2008 S27(11)

CHILDRENS UNIVERSITY HOSPITAL TEMPLE STREET v D (C) & F (E) 2011 1 IR 665 2011 2 ILRM 262 2011/8/1953 2011 IEHC 1

INTERPRETATION ACT 2005 S5(1)(B)

CONSTITUTION ART 34.1

R LTD, IN RE 1989 IR 126 1989 ILRM 757 1989/8/2304

ROE v BLOOD TRANSFUSION SERVICE BOARD & ORS 1996 3 IR 67 1996 1 ILRM 555

ANSBACHER (CAYMAN) LTD, IN RE 2002 2 IR 517 2002 2 ILRM 491 2002/2/294

DOE v REVENUE CMRS 2008 3 IR 328 2008 2 ILRM 114 2008/14/2866 2008 IEHC 5

MCKEOGH v DOE 1 & ORS UNREP PEART 22.1.2012 2012/32/9429 2012 IEHC 95

CONSTITUTION ART 40.3.2

FLEMING v IRELAND 2013 2 ILRM 73 2013 IEHC 2

CONSTITUTION ART 40.1

KIELY v MIN FOR SOCIAL WELFARE (NO 2) 1977 IR 267

PRACTICE AND PROCEDURE

Reporting

Motion for imposition of reporting restrictions preventing disclosure of identity - Claim of severely autistic adult for damages for false imprisonment, negligence and breach of constitutional rights - Whether reporting restrictions should be imposed - Whether plaintiff came within terms of legislation - Whether reporting restrictions would be prejudicial to interests of justice - Complaint regarding potential lack of mutuality - Challenge to good name and professionalism of named Gardaí - Protection of vulnerable litigants - Whether plaintiff came within ambit of section - Open administration of justice - Equality of treatment - Inherent jurisdiction of court - Temple Street University Hospital v D [2011] IEHC 1, (Unrep, Hogan J, 12/1/2011); Bank of Ireland v Purcell [1989] IR 317; Re R Ltd [1989] IR 126; Roe v Blood Transfusion Services Board [1996] 3 IR 67; Re Ansbacher (Cayman) Ltd [2002] 2 IR 517; Doe v Revenue Commissioners [2008] IEHC 5, [2008] 3 IR 328; McKeogh v John Doe 1 [2012] IEHC 95, (Unrep, Peart J, 22/1/2012); Fleming v Ireland [2013] IEHC 2, (Unrep, Divisional High Court, 10/1/2013) and Kiely v Minister for Social Welfare (No 2) [1977] IR 267 considered - Civil Law (Miscellaneous Provisions) Act 2008 (No 14) , s 27 - Constitution of Ireland 1937, Arts 34.1 and 40.3.2 - Application refused (2012/8876P - Hogan J - 11/6/2013) [2013] IEHC 312

F(D) v Garda Commissioner

Facts: The plaintiff suffered from an acute intellectual disability and brought a motion pursuant to s. 27 Civil Law (Miscellaneous Proceedings) Act 2008 to have reporting restrictions imposed which would prevent the disclosure of his identity in open court. He was arrested and his detention in unusual surroundings caused him acute distress. He had been seen chasing two women with a stick. His legal advisors sought an order restraining the disclosure of his identity. The Court had previously made an order on an ex parte basis pursuant to s. 27 directing reporting restrictions on his identity.

Held by Hogan J. that the Court would not continue the order previously made on an ex parte basis. The Court would decline to exercise its inherent jurisdiction pursuant to s. 27. The Court had to choose between protecting a vulnerable plaintiff and the equally desirable goal of open justice. However, the conditions for the making of an order had not been met.

1 1. Where a plaintiff'suffering from an acute intellectual disability sues for false imprisonment and intentional trespass to the person along with a claim for negligence is he entitled to do so anonymously? Or does the fact that these proceedings directly or indirectly reflect on the good name of individual members of the Gardaí have a bearing on this question? These are the problematic issues which arise on the plaintiff's motion pursuant to s. 27 of the Civil Law ( Miscellaneous Proceedings) Act 2008 ("the 2008 Act") to have reporting restrictions imposed which would prevent the disclosure of his identity in open court. At its most basic, this application presents a dilemma for the judicial branch, since it involves choosing between a desire to protect a vulnerable, disabled young man on the one hand, while preserving the Constitution's preference for open justice and the equal treatment of accuser and accused on the other. As will be seen from the discussion which now follows, it is simply not possible to give effect to all of these values in the context of this application.

2 2. The background to the present case is as follows: The plaintiff is a 27 year old young man who 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. While the State defendants originally pleaded that they had no direct knowledge of these disabilities, it is now accepted by them following a medical examination of the plaintiff that he is severely autistic.

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. Sadly, the plaintiff's mother 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. Much of this background was already summarised by me in the earlier judgment which I gave regarding the plaintiff's entitlement to jury trial: see DF v. Garda Commissioner (No.1) [2013] IEHC 5. In that case I ruled that the plaintiff was entitled to jury trial, save that all issues concerning the legality of the arrest (including the question of whether the Gardaí were negligent) was to be determined by the trial judge and not by the jury.

9 9. The plaintiff's legal advisers now seek an order restraining the disclosure of his identity under s. 27 of the 2008 Act and, if necessary, pursuant to the inherent jurisdiction of the Court. They candidly admit that the object of this application is to protect and shield the plaintiff from press publicity. For perfectly understandable reasons, the plaintiff's family fear that publicity would bring unwelcome attention to him and thereby perhaps expose him to...