G.E. v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 02 December 2022
• Neutral Citation: [2022] IESC 51
• Court: Supreme Court
• Docket Number: S:AP:IE:2021:000130

Between/

G.E.

Plaintiff/Respondent

and

The Commissioner of an Garda Síochána, The Governor of Cloverhill Prison, The Minister for Justice and Equality, The Attorney General and Ireland

Defendants/Appellants

[2022] IESC 51

O'Donnell CJ

Dunne J

O'Malley J

Baker J

Hogan J

S:AP:IE:2021:000130

AN CHÚIRT UACHTARACH

THE SUPREME COURT

False imprisonment – Unlawful detention – Damages – Plaintiff seeking damages for false imprisonment – Whether, in circumstances where a plaintiff can establish that he or she has been unlawfully detained, a defendant can defeat any consequential claim for compensatory damages if it can be shown that had the plaintiff not been unlawfully detained, he or she could and would have been lawfully detained

Facts: The plaintiff brought a plenary action before the High Court in which he claimed damages for false imprisonment and/or breach of his right to liberty for the period from 1 August to 26 August and including the period from 12:40 pm to 3 pm on 26 August 2011. Faherty J found in favour of the plaintiff in a judgment dated 9 May 2018 ([2018] IEHC 293), holding that he had been unlawfully detained. She also found for the plaintiff in respect of the contention that R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 could not be said to reflect the law in Ireland’s jurisdiction. She rejected the underlying premise of the defendants, the Commissioner of An Garda Síochána, the Governor of Cloverhill Prison, the Minister for Justice and Equality, the Attorney General and Ireland, that the plaintiff’s period of false imprisonment should be considered as a lesser infringement of the constitutional guarantee to personal liberty since it only came about because of omissions of a technical nature. Faherty J held that the plaintiff’s deprivation of his liberty for some twenty-six days could not be remedied by an award of nominal damages, as urged by the defendants. She accordingly awarded the sum of €7,500 in respect of the false imprisonment. Faherty J expressly took into account the credibility deficits in the plaintiff’s evidence. The Court of Appeal upheld the High Court’s decision in a judgment delivered by Murray J on 16 April 2021 ([2021] IECA 113). The State defendants appealed to the Supreme Court against that decision, essentially on the basis that both the High Court and the Court of Appeal should have followed the Lumba approach. The appellant contended that the award of €7,500 made by Faherty J was inadequate in the circumstances of his twenty-six days of unlawful detention.

Held by Hogan J that he entirely agreed with both Faherty J in the High Court and Murray J in the Court of Appeal that, save perhaps for purely technical and fleeting instances of false imprisonment, an award of damages for false imprisonment will normally (and should) contain an element of vindicatory damages. Hogan J held that any other conclusion would not only devalue the remedy of false imprisonment, but it would also take from the inherent importance of personal liberty and respect for the rule of law. To that extent, Hogan J differed from the majority view of the UK Supreme Court in Lumba. Hogan J suggested that this was what the common law required. Hogan J held that, in Ireland’s jurisdiction, this conclusion was reinforced by constitutional considerations such as Article 5 (emphasising the democratic nature of the State), Article 40.4.1° (the protection of personal liberty) and Article 40.3.1° and Article 40.3.2° (which require the judicial arm of the State to “vindicate” constitutional rights such as the right to liberty). Hogan J held that, provided that the starting point in any award contains a sum sufficient to mark the inherently serious nature of illegal detention and is one which goes beyond any question of nominal damages – as the award in this case did – then, just as in cases such as McCord v Electricity Supply Board [1980] ILRM 153, the High Court was entitled to reduce the award having regard to the unreasonable or unsatisfactory conduct of the plaintiff.

Hogan J dismissed both the appeal brought by the State defendants and the cross-appeal of the plaintiff.

Appeal and cross-appeal dismissed.

JUDGMENT of Mr. Justice Gerard Hogan delivered the 2 ^nd day of December 2022

I.

Introduction

1 . This appeal raises a novel and important issue in respect of the award of general damages for the tort of false imprisonment. This Court has been asked to determine the following question: in circumstances where a plaintiff can establish that he or she has been unlawfully detained, can a defendant defeat any consequential claim for compensatory damages if it can be shown that had the plaintiff not been unlawfully detained, he or she could and would have been lawfully detained? If that question can be answered in the affirmative, then it is suggested that the plaintiff in those circumstances is confined to an award of nominal damages only.

2 . This was the general issue that arose before the United Kingdom Supreme Court in R (Lumba) v. Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245. In that case the UK Supreme Court held that in such circumstances, a plaintiff should not be entitled to compensation for a loss of liberty which the plaintiff would in any event have suffered irrespective of the defendant's wrong. Instead, the UK Supreme Court held the plaintiff in such a case would only be entitled to nominal damages, unless the circumstances were such as to give rise to a claim for exemplary or punitive damages.

3 . The defendants in this appeal contend that this so-called Lumba principle ought to be adopted in this jurisdiction. They accept that there is no direct authority on this issue in this jurisdiction but argue that the Lumba principle is consistent with the well-established principles governing the law of damages. The plaintiff disputes this, contending that the defendants' account of the law both misinterprets the elements of the tort of false imprisonment and would, if correct, fail to afford sufficient weight to the importance of the right to personal liberty as protected by the Constitution.

4 . The High Court accepted the plaintiff's analysis in a judgment delivered by Faherty J. dated 9 May 2018: [2018] IEHC 293. The defendants then sought to appeal the High Court's decision directly to this Court by way of leapfrog appeal, but this Court refused to grant leave: [2019] IESCDET 72. The defendants accordingly appealed instead to the Court of Appeal which upheld the decision of the High Court in its judgment delivered by Murray J. on 16 April 2021: [2021] IECA 113, [2021] 2 ILRM 441. This Court then granted leave to appeal the Court of Appeal decision by way of Determination dated 15 February 2022: [2022] IESCDET 20.

II.

The Background to the Appeal

5 . The plaintiff, G.E. (“Mr. E.”) is a non-national who arrived in Ireland in 2008 and sought asylum in the State. He originally claimed to be from Sierra Leone, although there is much evidence to suggest that he is in fact Nigerian. This application for asylum was refused in the same year and the plaintiff subsequently applied for subsidiary protection. During the period in which this application was still pending, the plaintiff was arrested on 1 ^st August 1 2011. He had left the State and then re-entered by bus from Northern Ireland. He was refused permission to land in the State pursuant to ss. 4(3)(e), (g) and (h) of the Immigration Act 2004 and arrested pursuant to s. 5(2) of the Immigration Act 2003 (“the 2003 Act”).

6 . The plaintiff was then detained overnight in Dundalk Garda Station on foot of a detention order directed to the Member in Charge of the station. This order was stated to be made in exercise of the powers conferred on the Minister for Justice and Equality by s. 5(2) of the 2003 Act. On the following day, the plaintiff was released and then immediately re-arrested and detained on foot of a fresh detention order made out to the Governor of Cloverhill Prison, which was made out on the same basis and by the same officer as the first.

7 . On 9 ^th August 2011, the applicant applied to the High Court pursuant to Article 40.4.1° to enquire into the legality of his detention. The High Court held that it was lawful and this decision was appealed to this Court. This Court reversed this finding and ordered the plaintiff's release: see [2011] IESC 41. In the period while this appeal was pending, G.E.'s application for subsidiary protection was refused by the Minister for Justice and Equality.

8 . This Court's finding of illegality lay in the form of the warrant used to ground the plaintiff's detention. The Court ruled that the detention order was defective as it should have recorded the fact that the plaintiff had been refused permission to land and, moreover, that it should also have recorded that the reason for the arrest and detention of the plaintiff was that the immigration officer in question had reasonable cause to suspect that the plaintiff was a non-national who had been unlawfully in the State for a continuous period of less than three months. Because the warrant recorded neither of these requirements, the detention was held to be unlawful.

9 . The decision of this Court was delivered at 12:40 pm on 26 ^th August 2011. At 3 pm on that day the plaintiff was released from Cloverhill Prison. Immediately following that release, the plaintiff was re-arrested and detained on foot of a further detention order. That order contained the requisite information that had been absent from the first two such orders. On 30 ^th August 2011, the plaintiff applied to the High Court for a further enquiry into the lawfulness of his detention. He relied in that regard upon the failure of the first, second and third defendants to release him promptly on foot of the order of the Supreme Court of 26 ^th August 2011.

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