Livingstone v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 02 April 2004
• Neutral Citation: [2004] IEHC 58
• Court: High Court
• Docket Number: No. 10158P/2004
• Date: 02 April 2004

[2004] IEHC 58

The High Court

No. 10158P/2004

LIVINGSTONE & ORS v. MINISTER FOR JUSTICE & AG

Between/

JAMES LIVISGSTONE, TARA BEAUCHAMP, AND CONOR LIVINGSTONE

PLAINTIFFS

AND

THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

Citations:

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 13

D V NSPCC 1977 1 AER 589

FENNELL LAW OF EVIDENCE IN IRELAND 2ED 2003

CONSTITUTION ART 6

MURPHY V DUBLIN CORPORATION 1972 IR 215

AMBIORIX LTD V MIN FOR ENVIRONMENT 1992 1 IR 277

BURKE V CENTRAL INDEPENDENT TELEVISION PLC 1994 2 IR 61 1994 2 ILRM 161

O'BRIEN V IRELAND & ORS 1995 1 IR 568 1995 1 ILRM 22

AG V HAMILTON 1993 ILRM 821

GOODMAN INTERNATIONAL V HAMILTON NO 3 1993 3 IR 320

BREATHNACH V IRELAND NO 3 1993 2 IR 458

RSC O.31 r29

MARKS V BEYFUS 1890 25 QBD 494

DIRECTOR OF CONSUMER AFFAIRS V SUGAR DISTRIBUTORS LTD 1991 1 IR 225

GORMLEY V IRELAND 1993 2 IR 75

OFFENCES AGAINST THE STATE ACT 1939

SKEFFINGTON V ROONEY 1994 1 IR 480

SMURFIT PARIBAS BANK LTD V AAB EXPORT FINANCE LTD 1990 1 IR 469

DOYLE V GARDA COMMISSIONER 1999 1 IR 249 1998 2 ILRM 523

DPP V SWEENEY 2001 4 IR 102 2002 1 ILRM 532

Abstract:

Practice and procedure - Discovery - Privilege - Public interest immunity - Discovery of garda file - Media releases and briefings - Custody records

Facts: The plaintiff alleged that the defendants were negligent in or about the management of the investigation into the murder of the plaintiff’s wife in proceeding on the basis that he was responsible for the murder. He applied for an order directing the defendants to make discovery of inter alia the garda file. The defendants resisted discovery on the grounds, inter alia, that the public interest required the upholding of the confidentiality of garda investigations.

Held by Murphy J. in making an order for discovery that there was not a blanket ban against an order for discovery where a litigant sought his garda file or documents relating to a criminal investigation. Each case would be decided on its own facts. The court had to balance the plaintiff’s right to discovery of documents relevant to his claim against the public interest in not disclosing documents in respect of which public interest immunity was claimed.

Reporter: R.W.

1 Judgment of Mr. Justice Murphy dated the 2nd day of April, 2004

1. Notice of Motion

2 By notice of motion, the plaintiffs applied for an order directing the defendants to make discovery on oath of all documentation, computerised information, and photographic material relevant to the matters in question in the proceedings under nine categories in relation to the questions arrest of the first named plaintiff and emotional suffering and breach duty towards all of the plaintiffs in 1992–3. A statement of claim of 6 ^th December, 1999 and a defence dated 4 ^th July, 2001 were duly filed. This notice of motion dated 26 ^th November, 2003 was heard on 23 ^rd January, 2004.

2. Statement of Claim

3 The statement of claim, distinguished between the claims in respect of the first named plaintiff and that in respect of all the plaintiffs.

4 The first named plaintiff claimed damages, including aggravated, exemplary and/or putative damages, for false imprisonment, abuse of the legal process, abuse of power and/or putative damages, for false imprisonment, abuse of the legal process, abuse of power and/or misfeasance of public office, conspiracy,conversion and detinue, slander and breach of his rights under Article 13 of the European Convention onHuman Rights.

5 All of the plaintiffs claimed similar classes of damages for intentional and/or negligent infliction of emotional suffering, negligence, breach of duty, and/or breach of statutory duty and breach of their constitutional rights.

6 On the 7 ^th December, 1992, the first named plaintiff discovered his wife lying bound, gagged and fatally injured, having been badly beaten and having received a gunshot wound to the head. He immediately contacted the Garda Síochá,na. He made available to them a list of all firearms he had in his collection and made a voluntary statement. He has maintained that he was totally innocent of and had no part whatsoever in the brutal murder of his wife.

7 He pleaded that the Gardaí had been grossly abusive and insulting towards the second named plaintiff, his daughter, who was pregnant. The words complained of were defamatory and were calculated to impute that the first named plaintiff was guilty of offences punishable by imprisonment.

8 The first named plaintiff pleaded that his reputation was seriously damaged. He was arrested on the 3 ^rd March, 1993, led out of his home in handcuffs in full view of his neighbours at 7.30 a.m. The Garda Press Office issued statements and press releases to the media to the effect, inter alia, that a man in his mid-fifties had been arrested in connection with the murder. During the course of interviews certain statements were made to him. He was released at midnight on the 4 ^th March, 1993. The manner in which he was arrested and detained constituted an intentional infliction of emotional suffering and was calculated to break him psychologically and caused him grave emotional distress. It was in breach of his constitutional rights and his rights under the European Convention. The matters were pre-planned, thereby constituting a conspiracy. Privileged communications between him and his solicitor were removed by the Gardaí.

9 The plaintiffs alleged that the first and second named defendants were guilty of negligence and breach of duty and/or breach of statutory duty in or about the management of the investigation into the murder of the plaintiff's wife in proceeding from the outset on the basis that the first named plaintiff was responsible when they knew, or ought to have known, (had proper investigation and/or examination been carried out at the relevant time) that it was not reasonable to do so but rather that he should be eliminated as a suspect. In so proceeding, they thereby failed and neglected to take such steps and/or carry out such procedures, steps and investigations as ought properly to have been taken or carried out in all the circumstances. In stating to the third named plaintiff that they "had the right man", which was defamatory and a deliberate and malicious attempt to falsely convey that the first named plaintiff was responsible for the murder of the third named plaintiff's mother, it was calculated to cause, and did so cause in the third named plaintiff, severe emotional distress and suffering.

3. Defence

10 A defence was delivered on the 4 ^th July, 2001, following a notice of motion for judgment in default of defence. The defence admitted some matters awaited proof in relation to others and denied particular allegations in respect of the behaviour of members of the Garda Síochána on the 29 ^th December, 1992.

11 It was denied that the alleged innocence of the first named plaintiff, or his having no part in the murder of his wife, were facts that ought reasonably be known to the Gardaí or ought to have been ascertained by them shortly after they commenced their investigation. The Gardaí regarded the first named plaintiff as a suspect in their inquiries into the identity of the person responsible for the death of his wife. That belief was a reasonable one and was based on reasonable grounds.

12 It was denied that the Garda Press Office issued statements and press releases as alleged or at all. It was denied that members of the Gardaí uttered any of the words set forth in paragraph 20(a) 2(h) of the statement of claim; that Detective Garda Clinton produced photographs of the deceased or that Colonel Bernard Howard visited and was told by the Gardaí that they were prepared to release the first named plaintiff only in the absence of members of the press.

13 All further matters were denied in relation to the alleged infringement of the plaintiff's rights.

14 The pleadings having been closed by that defence dated the 4 ^th July, 2001, a note of intention to proceed was filed on the 6 ^th March, 2003, followed by the present motion filed on the 26 ^th November, 2003.

4. Grounding Affidavit

15 Gerard Charlton, solicitor for the plaintiffs listed the reasons why each of the nine categories of discovery were relevant and necessary to assist the plaintiffs in establishing the contentions outlined in the statement of claim. Voluntary discovery had been sought by letter dated the 11 ^th June, 2003. Mr. Charlton averred that no co-operation by way of voluntary discovery was forthcoming within the time prescribed by that letter and a number of reminders were sent.

16 Reasons were given why each category of documents (appended hereto) was required to be discovered. It was verified that the discovery was necessary for disposing fairly of the cause.

5. Replying affidavit

17 Detective Superintendent John Gallagher of the National Bureau of Criminal Investigation, in his affidavit sworn the 21 ^stJanuary, 2004, regarded the letter requesting, discovery in such wide and sweeping terms, as a trawling exercise as opposed to information relevant or necessary to the issues between the parties. Such request would amount to thousands of pages involving significant cataloguing and would involve the defendants in significant costs and resources. It was not necessary for fairly disposing of the proceedings and was largely not relevant not in the public Interest.

18 The public interest required the upholding of the confidentiality of such communications and the confidential nature of garda investigations. Detective Inspector Gallagher averred that it is in the public interest in the detection and prosecution of crime that discovery of such documents should not be allowed. The investigation into the death of the victim had not concluded and would remain open indefinitely. The reference to discovery in...