Gray and Others v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 17 January 2007
• Neutral Citation: [2007] IEHC 52
• Date: 17 January 2007
• Court: High Court
• Docket Number: [2001 No. 131P

[2007] IEHC 52

THE HIGH COURT

[No. 131P/2001]

Gray v Minister for Justice

BETWEEN

ALAN GRAY, PHYLLIS GRAY AND FRANCIS GRAY

PLAINTIFFS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

WARD v MCMASTER 1988 IR 337

ANNS v MERTON LONDON BOROUGH COUNCIL 1978 AC 728

HANAHOE T/A MICHAEL E HANANOE & CO v HUSEEY & CMSR OF AN GARDA SÍOCHÁNA & ORS 1998 3 IR 69

DOE v METROPOLITAN TORONTO (MUNICIPALITY) CMRS OF POLICE 1998 160 DLR (4TH) 697

KENNEDY & ORS v IRELAND & AG 1987 IR 587

R v CHIEF CONSTABLE OF THE NORTH WALES POLICE & ORS 1999 QB 396

CONSTITUTION

Personal rights

Right to privacy - Right to privacy in family home - Action for damages for breach of constitutional right - Whether breach of constitutional rights - Whether breach justified - Kennedy v Ireland [1987] 1 IR587 followed; Doe v Metropolitan Toronto (Municipality) Commissioners of Police (1998) 160 DLR (4th) 697 considered - Constitution of Ireland 1937, Article 40.3 - - Plaintiff awarded damages (2001/131P - Quirke J - 17/2/2007) 2007] IEHC 52

Gray v Minister for Justice

Facts: The plaintiffs were forced to return to Dublin having settled pursuant to the rural resettlement scheme in Kerry, when they suffered major distress arising from inter alia the leaking of information by Gardai that their nephew, a convicted sex offender, was living with them. The plaintiffs claimed damages for inter alia negligence, distress and breach of privacy.

Held by Quirke J. that while the plaintiffs had not proven on the balance of probabilities that the plaintiffs were subjected to an assault and battery, the Gardai had unlawfully disclosed information to media and members of the locality. The right to privacy of the family members had been violated and the family members had suffered great distress. The Court would award Eur15,000 and Eur50,000 to the family members respectively.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Quirke delivered on the 17th day of January, 2007

2 The first and second named plaintiffs are the married parents of five children. The third named plaintiff is their eldest son, who is now 26 years old.

3 The plaintiffs' family was permanently resident in Blanchardstown, in Dublin until 1995 when the family moved to Ballybunion in Co. Kerry under the terms of a rural resettlement scheme introduced by the government.

4 After arrival in Ballybunion the family was accommodated in houses close to the town for two successive 12 month periods. The family members were then provided with a permanent house in Marconi Avenue in Ballybunion, which is a small housing estate in the town. They settled successfully into their new home and the first-named plaintiff, Alan Gray, who is a steel erector, obtained employment at various locations in Kerry, in Co. Clare and in Co. Cork.

5 On a date between the 8th April 1999 and the 12th April 1999 the plaintiffs and their family members decided to abandon their home in Marconi Avenue in Ballybunion and to return to live permanently in Dublin.

6 They claim that they were forced to abandon their home by reason of the unlawful actions of members of An Garda Síochána in Kerry who, they claim;

7 (a) wrongfully, negligently and unlawfully disclosed to journalists in The Kerryman newspaper and The Examiner newspaper and to other journalists and members of the media that James O'Donoghue, who was and is a dangerous convicted rapist, was living with them in their home in Marconi Avenue, Ballybunion. As a result, it is claimed, the plaintiffs were subjected to abuse, harassment and intimidation of such a character that they were obliged to leave their home in Ballybunion permanently.

8 (b) acted in breach of a duty of confidence owed by the State to the plaintiffs not to disclose sensitive and inflammatory information to the media when such disclosure was likely to place the information in the public domain and to result in the harassment and intimidation of the plaintiffs and a violation of their constitutionally protected right to live peacefully in their home.

9 (c) on the 4th April, 1999, through two of its members, unlawfully entered the plaintiffs' home in Marconi Avenue, assaulted and battered the third-named plaintiff, Francis Gray and threatened James O'Donoghue with physical violence if he did not leave Ballybunion.

10 The plaintiffs claim damages for personal injuries, loss, damage, upset, inconvenience and distress which, they say, they have suffered as a direct consequence of the unlawful actions of members of the Gardaí who are the servants and agents of the State.

Relevant facts

11 1. In February of 1999, Alan Gray, at the request of his brother, agreed to provide his nephew, James O'Donoghue with temporary accommodation for a short time in the Gray home in Ballybunion. James O'Donoghue had been convicted on a charge of violent rape and had been sentenced to serve a term of 15 years imprisonment.

12 He had served 12 years of that sentence and was due to be released on the 15th February. He had earlier convictions for robbery and indecent assault. Arising out of his earlier convictions he complained that he had been subjected to a serious assault. He made it known that he was very fearful that he would be violently assaulted upon his release from prison. It was because of his fears that his father requested his brother, (the first-named plaintiff, Alan Gray), to provide him with temporary accommodation in Ballybunion.

13 Alan Gray agreed to do so for a short time, (estimated to be a few weeks). Alan Gray's wife, Phyllis, the second-named plaintiff was very unhappy with this arrangement but was reluctantly persuaded to agree to accommodate James O'Donoghue for a short time.

14 Immediately after his release on the 15th February, 1999, James O'Donoghue, who was then in his early 30's, arrived in Ballybunion where he took up residence in the Gray family home in Marconi Avenue.

15 2. After their arrival in Ballybunion in 1995 the plaintiffs' children had settled happily into the community in Ballybunion. They attended the local community school and actively and happily participated in community activity.

16 In February of 1999, when James O'Donoghue arrived in Ballybunion the plaintiffs' daughter Lucy was sixteen years old. Their sons, Alan (Junior), Paul and Robert were aged thirteen years, ten years and eight years respectively.

17 At that time there were six uniformed and one detective Gardaí attached to Ballybunion Garda Station. The Garda Station was manned between the hours of 9 a.m. and 2 p.m. daily and was under the administrative and supervisory control of the Garda District Headquarters at Listowel.

18 3. On 25th March, 1999 Garda Daniel O'Connor, a uniformed Garda attached to Ballybunion Garda Station, was requested to investigate the whereabouts of James O'Donoghue on 16th March, 1999. The request came from the Garda Divisional Headquarters at Listowel and arose as the result of an enquiry from a Garda Martin Walsh of Ronanstown in Dublin. Garda Walsh was then investigating a criminal sexual offence in Clondalkin in Dublin which was alleged to have occurred on 16th March, 1999.

19 Arising out of the enquiry Garda O'Connor went to Marconi Avenue in Ballybunion on 25th March, 1999. He met with the first and second named plaintiffs, Alan and Phyllis Gray, who were walking close to their home. Garda O'Connor had a conversation with Mr. and Mrs. Gray who confirmed that Mr. O'Donoghue was then residing with them in their family home.

20 4. The enquiry from Garda Martin Walsh was recorded in a book called an "Occurrence Book" which was maintained at the Garda Divisional Headquarters at Listowel.

21 Garda Daniel O'Connor recorded the result of his enquiries about James O'Donoghue by way of a written report which was transmitted to a Garda officer called a Collator, who was based in Tralee Garda Station. The report contained details of the convictions, former addresses and a description of James O'Donoghue and the opinion of Garda O'Connor, (a), that James O'Donoghue intended to remain " ...in Ballybunion permanently as he claims he cannot go back to Dublin ..." and, (b), that he would probably re-offend.

22 On 8th April, 1999 Garda John Keane, who was a Collator based at Tralee Garda Station, recorded the details contained in Garda O'Connor's report in a typed document, (the Collator's Report), which he sent to the Chief Superintendent in Tralee with a copy to the Superintendent in Listowel.

23 A document known as a "Collator's Bulletin" was then issued and circulated to all of the Garda stations in the Kerry Division. This document contained all of the details relating to James O'Donoghue which had been included in Garda O'Connor's earlier report and greater detail of the nature of and circumstances surrounding his earlier offences.

24 It was acknowledged by all of the relevant Garda witnesses who testified in these proceedings that the contents of, (i), the "Occurrence Book", in the Garda Divisional Headquarters in Listowel, (ii), the Report submitted to the Collator by Garda O'Connor, (iii), the Collator's Report and, (iv), the Collator's Bulletin were all sensitive, confidential documents to which only members of An Garda Síochána had access.

25 It was also acknowledged by the Garda witnesses that members of An Garda Síochána were advised and were aware that the contents of those documents should not under any circumstances be disclosed to members of the public, members of the media or anyone other than authorised Garda officers.

26 5. On Sunday, 4th April 1999 Detective Garda O'Neill who was then the sole Detective Garda attached to Ballybunion Garda Station visited to the Gray family home at Marconi Avenue. He was accompanied by Detective Garda...