Doyle v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrington
• Judgment Date: 01 January 1999
• Neutral Citation: 1998 WJSC-SC 6487
• Court: Supreme Court
• Docket Number: [1997,No. 330/1997
• Date: 01 January 1999

DOYLE v. COMMISSIONER OF AN GARDA SIOCHANA

Between:

PATRICK DOYLE

Plaintiff/Appellant

v.

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

Defendant/Respondent

1998 WJSC-SC 6487

O'Flaherty, J.

Denham, J.

Barrington, J.

Keane, J.

Murphy, J.

No. 330/1997

THE SUPREME COURT

Synopsis

- [1999] 1 IR 263 - [1998] 2 ILRM 523

Citations:

ORR V DIAPER 1876 4 CH 92

NORWICH PHARMACAL V COMMISSIONERS OF CUSTOMS & EXCISE 1974 AC 133

MEGALEASING UK LTD V BARRETT 1993 ILRM 497

CONSTITUTION ART 40.3

CONSTITUTION ART 34.3.1

TREATY OF ROME ART 5

1 JUDGMENT of Mr. Justice Barrington delivered the 22nd day of July, 1998. [NEM DISS.]

2 This is an appeal against the Judgment and Order of Laffoy, J. delivered and made herein on the 27th day of August, 1997 whereby she dismissed the Plaintiffs claim.

BACKGROUND FACTS.

3 The facts of the case are fully set out in the Judgment of the learned High Court Judge but it may be helpful to refer to some salient facts here. The case arises out of the car bomb explosions which took place in Dublin and Monaghan on the 17th day of May, 1974 which killed thirty-three people and injured and maimed many others. The Plaintiffs daughter Anne O'Brien and his infant grand-daughters Jacqueline and Anne Marie O'Brien were three of the innocent victims. Nobody has ever been prosecuted for these atrocities which are widely believed to have been the work of loyalist terrorists operating out of Northern Ireland.

4 Arising out of these matters the Plaintiff on the 27th May, 1996 lodged a complaint against the United Kingdom in the European Court of Human Rights. In the course of his letter of complaint the Plaintiffs Solicitor wrote:-

"Our client complains that the United Kingdom is in breach of its obligations under Article 2 of the Convention in that the Police Force operating in Northern Ireland (within the legal jurisdiction of the United Kingdom) to wit - the Royal Ulster Constabulary, which is charged with discharging the relevant obligations, failed to take the necessary and the appropriate steps:-"

1. To investigate and to enquire into the events in Northern Ireland associated with and leading up to the unlawful killing of the complainant's daughter and grand-daughters.

2. To trace and/or prosecute offenders in Northern Ireland, who were a party to the events leading to the unlawful killing of the complainant's daughter and grand-daughters".

5 The form of the complaint is important because the Plaintiff is not complaining of the killings themselves - such a complaint would be regarded by the European Court as statute-barred or stale - but of the alleged continuing failure by the Royal Ulster Constabulary properly to investigate the matter or to follow up matters allegedly brought to their attention by the Garda Síochána.

6 The European Commission of Human Rights, by letter dated 26th May, 1997 addressed to the Plaintiffs Solicitors informed the Plaintiff that his complaint had been received and registered and that, a member of the Commission, acting as rapporteur would carry out a preliminary examination and report to the Commission on the question of its admissibility.

EVIDENCE IN SUPPORT OF THE PLAINTIFF'S CLAIM.

7 The Plaintiff, in support of his claim, sent to the European Commission a video tape of a television programme entitled "Hidden Hand - The forgotten Massacre" which was broadcast by Channel Four in July 1993.

8 He also submitted a letter dated 28th August, 1996 in which the Assistant Chief Constable Crime of the Royal Ulster Constabulary had replied as follows to five questions posed by the Plaintiffs Solicitor:-

9 (1) "Enquiries into the theft of the vehicles and related offences conducted at the time and in the intervening period have not been successfully concluded. Despite a number of persons having been arrested on suspicion of involvement in these offences, no-one has been made amenable.

10 (2) As the murders occurred outside this jurisdiction no formal murder enquiry was conducted by the RUC. Full co-operation was however immediately extended to An Garda Síochána in its enquiry.

11 (3) A list of suspects compiled by An Garda Síochána was made available to the RUC.

12 a (4a) As stated above a number of persons were arrested and interviewed in relation to the theft of the vehicles.

13 b (4b) A number of persons were arrested and interviewed in relation to these murders.

14 (5) Details arising from the interviews referred to at (1), (4a) and (4b) above, as well as other material, were passed to An Garda Síochána at various stages of its enquiry".

JURISDICTION TO MAKE THE ORDER SOUGHT.

15 The Plaintiff has however established that there are in the hands of An Garda Síochána papers and files relating to these atrocities. He wishes to have these files discovered and produced so that he can use them in his case against the Government of the United Kingdom before the European Court of Human Rights. The Garda Commissioner however has taken his stand on a point of principle. He maintains that it is of paramount importance for the effectiveness of An Garda Síochána that information gathered by An Garda Síochána in the course of a criminal investigation should remain confidential. The Commissioner is not merely saying that some documents are privileged from discovery, he is saying that no Order for Discovery at all should be made as a matter of principle and that, in principle, the Court has no jurisdiction to make an Order for Discovery in a case such as the present one.

16 This is not a case in which discovery is sought as an interlocutory order for the purpose of assisting in resolving the main issues in the Action. Nor is it a case arising under Order 31 Rule 29 which deals with making an Order for Discovery against a person who is not a party to the Action. The sole object of this Action is discovery. It remains to consider whether it is the kind of case in which discovery can or ought to be made.

JURISDICTION AT COMMON LAW.

17 There is no doubt that the High Court has jurisdiction at common law to entertain an Action for sole discovery such as the present-one. But the Authorities establish that this is a jurisdiction to be exercised sparingly and it has been exercised only in cases where the Plaintiff was in the position to prove that he had suffered a wrong but he was not, and the Defendant was, in a position to establish the identity of the wrong doer. This was the position in the leading British case of Orr v. Diaper (1876) 4 Ch. D. 92 and also in the more recent decision of the House of Lords in Norwich Pharmacal v. Commissioners of Customs and Excise (1974) A.C. 133. Both these cases were discussed by this Court recently in the case of Megaleasing U.K. Ltd. v. Barrett (1993) ILRM 497 in which an Order of Costello, J. in the High Court granting an extensive discovery aimed at establishing an alleged wrong was unanimously reversed by this...