Kennedy v Ireland

• Jurisdiction: Ireland
• Judgment Date: 01 January 1988
• Date: 01 January 1988
• Docket Number: [1984 No. 5011P]
• Court: High Court

High Court

[1984 No. 5011P]

Kennedy v. Ireland

Geraldine Kennedy, Bruce Arnold and Mavis Arnold, Plaintiffs

and

Ireland and The Attorney General

Defendants

Cases mentioned in this report:—

Ryan v. The Attorney General [1965] I.R. 294.

Norris v. The Attorney General [1984] I.R. 36.

Stanley v. Georgia (1969) 394 U.S. 557.

Terry v. Ohio (1968) 392 U.S. 1.

Griswold v. Connecticut (1965) 381 U.S. 479.

Meyer v. Nebraska (1923) 262 U.S. 390.

McGee v. Attorney General [1974] I.R. 284; (1973) 109 I.L.T.R. 29.

Dudgeon v. United Kingdom (1981) 4 E.H.R.R. 149.

Meskell v. Córas Iompair Éireann éireann [1973] I.R. 121.

Rookes v. Barnard [1964] A.C. 1129; [1964] 2 W.L.R. 269; [1964] 1 All E.R. 367; [1964] 1 Lloyd's Rep. 28.

Constitution - Personal rights - Right to privacy - Unenumerated rights - Right to privacy in telephone conversations - Unjustified tapping of telephone by State - Action for damages for breach of constitutional rights - Constitution of Ireland, 1937, Article 40, s. 3.

Damages - Aggravated or exemplary damages - Breach of constitutional rights - Unconstitutional action on the part of servants of the State - Civil Liability Act, 1961 (No. 41), ss. 7, 14.

Plenary Summons.

By plenary summons issued on the 26th June, 1984, the plaintiffs commenced proceedings against the State for damages for breach of their constitutional rights, abuse of power and breach of contract arising out of the tapping of their private telephones between May and November, 1982. The facts and arguments have been summarised in the headnote and are set out in the judgment of the President, infra.

The plaintiffs' action was heard by the President on the 4th and 5th December, 1986.

Between May and November, 1982, by authority of a warrant issued by the Minister for Justice, the private telephones of the plaintiffs, who were political journalists, were tapped. In January, 1983, the Minister for Justice issued a public statement in which he admitted the tapping. He further admitted that there had been no justification for the tapping and that what had occurred went beyond anything that could be explained as an error of judgment.

The plaintiffs brought proceedings for damages for the unlawful tapping of their telephones. In particular they claimed that the actions of the servants of the State amounted to a breach of their personal right to privacy and freedom from unlawful and unwarranted intrusion guaranteed by Article 40 of the Constitution. The defendants admitted the fact of the tapping but denied that there had been any illegality or that the plaintiffs' constitutional rights had been infringed.

Held by Hamilton P., in giving judgment for the plaintiffs, 1, that the right to privacy, though not specifically guaranteed by the Constitution, was one of the personal rights of the citizen which flowed from the Christian and democratic nature of the State.

Ryan v. The Attorney General [1965] I.R. 294 and Norris v. The Attorney General[1984] I.R. 36 considered.

2. That the consitutional right to privacy included the right to hold private telephone conversations without deliberate, conscious and unjustified intrusion by servants of the State.

3. That the right to privacy was not an unqualified right but was subject to the constitutional rights of others and to the requirements of public order, public morality and the common good.

4. That the tapping of the plaintiffs' telephones had been deliberate, conscious and unjustifiable and was an actionable infringement of their constitutional rights.

Meskell v. Córas Iompair Éireann éireann [1973] I.R. 121 applied.

5. That while the reputations of the plaintiffs had been vindicated by the statement of the Minister for Justice, the damage suffered by them had been aggravated by the fact that the tapping had been done by an organ of state which was constitutionally obliged to defend their rights.

Rookes v. Barnard [1964] A.C. 1129 considered.

Cur. adv. vult.

Hamilton P.

The facts in this case are not in dispute.

At all relevant times both the first and second plaintiffs were distinguished and well known political correspondents with Irish national newspapers with extensive circulation within the state. The third plaintiff was and is the spouse of the second plaintiff, a free-lance journalist and an active participant in the Women's Political Association. In the course of their work and in their private capacities, each of the plaintiffs made extensive use of telephones from their respective homes. The first plaintiff's private telephone number was 280006 and the second and third plaintiffs' was 805575.

In para. 7 of the statement of claim delivered on behalf of the plaintiffs it was alleged that:—

"On dates unknown between the 28th July, 1982, and the 16th November, 1982, in respect of the first-named plaintiff's telephone number and between the 10th May, 1982, and the 12th July, 1982, in respect of the second-named plaintiff's then telephone number, the said telephones were illegally tapped. The said telephone tapping was carried out by one or other or either of the servants or agents of the first defendant pleaded herein. Recordings and transcripts were illegally made by the said servants or agents of the State."

In para. 4 of the defence delivered on behalf of the defendants, it is stated that:—

"The defendants admit the facts set out in para. 7 of the statement of claim herein but deny that by reason of any of the said facts there was any illegality or any breach of any of the plaintiffs' constitutional rights either as alleged or at all."

The plaintiffs had in...