DF v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 15 May 2015
• Neutral Citation: [2015] IESC 44
• Court: Supreme Court
• Docket Number: [S.C. Nos. 340, 349 & 372 of 2013],Record number: 2012/8876P
• Date: 15 May 2015

Between

D F (called Desmond on this appeal) (suing by his next friend K McE) (called Maeve on this appeal)

Plaintiff/Appellant

and

The Commissioner of An Garda Síochána

The Minister for Justice, Equality and Defence

Ireland and the Attorney General

Defendants/Respondents

[2015] IESC 44

Denham CJ

Murray J

Hardiman J

O'Donnell J

Charleton J

Record number: 2012/8876P

Appeal number: 372/2013

An Chúirt Uachtarach

The Supreme Court

Unlawful arrest – Trial by jury – Anonymity – Appellant seeking aggravated, punitive and/or exemplary damages – Whether appellant is entitled to anonymity

Facts: The plaintiff/appellant suffers from a severe form of autism. In September 2010, he allegedly chased two young women with a stick, causing them some distress. He was arrested by Gardaí, ostensibly under s. 12 of the Mental Health Act 2001. He claimed that as a result of this allegedly unlawful arrest, he suffered and sustained serious injuries, including physical and significant psychological and/or psychiatric injury, loss, damage and expense. He alleged that there was handcuffing and restraint and a failure to respond to later pleas from his mother to release him and that he was only released when his father arrived at the station. The actions of the Gardaí were described as being inter alia, in bad faith and/or want of reasonable care in respect of these aspects of the detention. Aggravated, punitive and/or exemplary damages were sought by virtue of the inhuman and degrading treatment to which he was allegedly subjected due to placing him in an alien and hostile environment. Further, it is claimed that the State acted in a negligent manner consequent upon a formal complaint to the Garda Síochána Ombudsman Commission and that, in so doing, the plaintiff/appellant"s entitlement under the Constitution to privacy and to family life was breached and rights under the European Convention were also infringed. Particulars of negligence were pleaded to include breach of statutory duties on the part of the State defendants, their servants or agents. The defendants/respondents pleaded that care was taken under the relevant statutory provision to contact a medical practitioner. The defence denied that there was a breach of the torts, duties, constitutional rights and convention rights asserted by the plaintiff/appellant. The trial judge reasoned that, as a matter of law, false imprisonment was a tort which required to be tried by a judge without a jury. On this appeal to the Supreme Court, the plaintiff/appellant argued that this ruling undermines the traditional approach to the role of judge and jury in a civil case. The plaintiff/appellant also sought statutory entitlement to anonymity based on embarrassment arising from his medical condition. The State argued that the level of autism suffered by the plaintiff/appellant is such that he would have no awareness of being in court or of his case being reported. An expert report was furnished in that regard.

Held by Charleton J that, having considered the State"s assertion that Order 36 Rule 7 of the Rules of the Superior Courts entitles the trial judge to order a trial by judge alone notwithstanding that there is an entitlement pursuant to legislation for the trial to be one by a judge sitting with a jury, the argument could not succeed; the Superior Courts Rules Committee is not entitled to overrule the provisions of the Courts Act 1988. Charleton J held that the expert report, while accepted by the trial judge, did not take into account the effect that reporting the name of a plaintiff or a defendant or a witness can have in a society where, globally, people can be harried and undermined by anonymous internet malice, referring to McKeogh v John Doe 1 & ors [2012] IEHC 95.

Charleton J held that plaintiff/appellant is entitled by statute to anonymity in the trial and of any preliminary step of these proceedings and any report thereof; a jury will at that trial have to answer questions put to them, as framed by the trial judge, relating to the validity of the arrest. Any other claimed civil wrongs under the Constitution or the European Convention, if they existed at all, were entirely within the decision of the trial judge.

Appeal allowed – vary High Court Order.

Judgment of Mr Justice Charleton delivered on Friday the 15th day of May 2015

1 This appeal raises two issues: firstly, when does a plaintiff have an entitlement to trial by jury where multiple torts are pleaded in respect of an arrest incident; and, secondly, when does a party to proceedings have a statutory entitlement to anonymity based on embarrassment arising from of a medical condition. The appeal is from two judgments of Hogan J in the High Court: DF v Garda Commissioner & Others [2013] IEHC 5, as to the jury trial issue; and DF v Garda Commissioner & Others (No 2) [2013] IEHC 312, as to the anonymity issue. On this appeal the plaintiff appellant will have the assumed name of 'Desmond'. The defendant respondents will be referred to as 'the State'. There have been now three written judgments related to this case in the High Court. The third relates to the viability of constitutional torts alongside civil wrongs defined at common law; DF v Garda Commissioner & Others (No 3) [2014] IEHC 213 and is not part of this appeal. Counsel for Desmond has complained of being subjected to a multitude of procedural motions from the State. While it is understandable that those drafting a plenary summons and a statement of claim would wish, in aid of a plaintiff, to include all relevant causes of action, the result of pleading multiple and diverse apparent causes of action may be that the opposing side requires to interrogate these. That approach to pleading can obfuscate the core issue in a case.

The incident and the pleadings

2 The plaintiff/appellant Desmond suffers from a severe form of autism. The statement of claim, dated 6 September 2012, gives a date of birth for Desmond in 1985 and describes him as having severe learning disabilities. Both sides accept that on 24th September 2010 Desmond was arrested by gardaí, ostensibly under section 12 of the Mental Health Act 2001. This arrest is pleaded as being:

... unlawful, contrary to law, negligent and/or carried out in breach of duties (including breach of statutory duties) and in breach of the plaintiff's Constitutional rights as well as his rights under the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the "European Convention") as incorporated into Irish law by the European Convention on Human Rights Act 2003 and his rights under the Charter of Fundamental Rights of the European Union 2010.

3 It is claimed that as a result of this allegedly unlawful arrest, Desmond 'suffered and sustained and continues to suffer and sustain serious injuries, to include physical and significant psychological and/or psychiatric injury, loss, damage and expense.' The pleading continues with allegations that there was handcuffing and restraint of Desmond and a failure to respond to later pleas from his mother, now deceased, to release him and that he was only released when his father arrived at the station. The actions of the gardaí are described as being 'inter alia, in bad faith and/or want of reasonable care' in respect of these aspects of the detention. 'Aggravated, punitive and/or exemplary damages' are sought 'by virtue of the inhuman and degrading treatment' to which Desmond was allegedly subjected due to 'placing him in an alien and hostile environment'. Further, it is claimed that the State acted in a negligent manner consequent upon a formal complaint to the Garda Síochána Ombudsman Commission and that, in so doing, Desmond's entitlement under the Constitution to privacy and to family life was breached and rights under the European Convention were also infringed. Particulars of negligence are pleaded 'to include breach of statutory duties on the part of the defendants, their servants or agents'. The prayer for relief follows on from the particulars of the claim. This seeks:

1. a declaration that the arrest was unlawful

2. a declaration that the detention was unlawful

3. damages from false imprisonment

4. damages for assault, battery and trespass to the person

5. damages for personal injury, loss damage and expense and psychiatric injury

6. damages for negligence and breach of duties of a statutory kind

7. damages from breach of the plaintiff's Constitutional rights to liberty, bodily integrity and privacy

8. damages for failure to defendant vindicates these rights and to protect the plaintiff from unjust attack

9. damages for breach of the plaintiff's rights under the European Convention on Human Rights Act 2003 'to include, inter alia, the rights to liberty, to private and family life and the right not to be subjected to inhuman and degrading treatment'

10. damages for breach of Articles 3.1, 4, 6 and 7 of the Charter of Fundamental Rights of the European Union

11. aggravated, punitive or exemplary damages

12. such further and/or other relief as the court thinks fit

13. interest pursuant to statute

14. costs

4 By reciting these claimed reliefs, it is not to be in any way taken that it is accepted that any such wrong exists as a matter of law. The State defence, delivered on 28 September 2012, awaits proof of the plaintiff's date of birth and any particulars related to his disability. The defence set out a factual narrative. It asserts that prior to the arrest Desmond allegedly chased two young women with a stick, causing them some distress. Following on a complaint, it is said, gardaí arrived at the scene to find Desmond swinging a stick. On attempting to speak to him, the State claims, the gardaí realised that there was a disability but decided that section 12 of the Mental Health Act 2001 applied and took him into custody on the...