Lockwood v Ireland and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 10 December 2010
• Neutral Citation: [2010] IEHC 430
• Court: High Court
• Docket Number: [2006 No. 2304
• Date: 10 December 2010

[2010] IEHC 430

THE HIGH COURT

[No. 2304 P./2006]

Lockwood v Ireland & Ors

JUDICIAL REVIEW

BETWEEN

BELINDA LOCKWOOD

PLAINTIFF

AND

IRELAND

AND

THE ATTORNEY GENERAL

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

DEFENDANTS

CRIMINAL LAW ACT 1997 S3

CRIMINAL JUSTICE ACT 1984 S4

STATUTE OF LIMITATIONS 1957

QUINN, STATE v RYAN & QUINN 1965 IR 70

BYRNE v IRELAND & AG 1972 IR 241

MESKELL v CORAS IOMPAIR EIREANN 1973 IR 121

W v IRELAND & ORS (NO 2) 1997 2 IR 141 1998/10/3158

DPP v CASH 2008 1 ILRM 443 2007/17/3461 2007 IEHC 108

HANAHOE v JUDGE HUSSEY & ORS 1998 3 IR 69 1998/21/7778

GRAY v MIN FOR JUSTICE & ORS 2007 2 IR 654 2007/26/5428 2007 IEHC 52

SHORTT v CMSR OF AN GARDA SIOCHANA & ORS 2007 4 IR 587 2007/56/11945 2007 IESC 9

MCFARLANE v IRELAND UNREP ECHR 10.9.2010 2010 ECHR 1272 (APPLICATION NO 31333/06)

DESMOND v CHIEF CONSTABLE OF NOTTINGHAMSHIRE POLICE UNREP 1.10.2009 2009 EWHC 2362 (QB)

HILL v CHIEF CONSTABLE OF WEST YORKSHIRE 1989 AC 531988 2 WLR 1049 1988 2 AER 238

OSMAN v UNITED KINGDOM 2000 29 EHRR 245 1999 1 FLR 193 5 BHRC 293

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

OSBOURNE v MIN FOR JUSTICE & ORS 2009 3 IR 89 2006/47/10044 2006 IEHC 117

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84

KENNEDY v LAW SOCIETY OF IRELAND & ORS (NO 4) 2005 3 IR 228

KEATING v JUDGE CROWLEY & ORS UNREP SUPREME 12.5.2010 2010 IESC 29

BROOKS v METROPOLITAN POLICE CMSR & ORS 2005 1 WLR 1495 2005 2 AER 489

Z & ORS v UNITED KINGDOM 2002 34 EHRR 3 2001 2 FLR 612 2001 2 FCR 246 10 BHRC 384

EXTRADITION ACT 1965

MCDONNELL v IRELAND & ORS 1998 1 IR 134

NEGLIGENCE

Duty of care

Victim of crime - Infringement of constitutional right - Cause of action - Breach of duty by member of gardaí charged with carrying out public function - Liability to suit of An Garda Síochána - Whether requirement of male fides in performance of duties and functions - Time limit - Date of knowledge -Whether claim statute barred - Osbourne v Minister for Justice [2006] IEHC 117, [2009] 3 IR 89; Kennedy v Law Society (No 4) [2005] 3 IR 228; W v Ireland (No 2) [1997] 2 IR 141; McDonnell v Ireland [1998] 1 IR 134 and Keating v Judge Crowley [2010] IESC 29 (Unrep, SC, 12/5/2010) considered - Action dismissed (2006/2304P - Kearns P - 10/12/2010) [2010] IEHC 430

Lockwood v Ireland

Facts The plaintiff was the complainant in a prosecution for rape brought by the Director of Public Prosecutions. The prosecution's case in respect of that offence collapsed following the ruling by the trial judge that the accused had been illegally arrested and consequently was detained in illegal custody and it therefore followed that the admissions made by him during interview in the Garda Station were inadmissible in evidence. The plaintiff commenced proceedings by way of plenary summons seeking damages arising from the alleged negligence and breach of duty on the part of the defendants, notably the servants or agents of the third named defendant, in invoking a power of arrest that did not exist at the time of the purported arrest. The plaintiff asserted that the State failed to vindicate her constitutional right to bodily integrity and to ensure that justice was achieved in her case. Following the bringing of those proceedings, the defendants brought a motion to this Court for an order directing the trial of preliminary issues which effectively requested that the court should dismiss these proceedings on two grounds, namely: 1. The time limit for bringing the claim in question was statute barred and 2. in the absence of mala fides in the performance of their investigative and prosecutorial functions, the Garda Siochana could not be held liable in damages to the plaintiff in the circumstances of the present case.

Held by Kearns P. in dismissing the claim: That in the absence of mala fides no cause of action arose in the circumstances of this case for negligence against the Gardai. No duty of care arises in respect of bona fide actions and decisions carried out by An Garda Siochana in the course of a criminal investigation and/or prosecution. There was also no basis for creating a cause of action based on alleged infringement of constitutional rights in this case.

Obiter: Insofar as the Statute of Limitations point was concerned the plaintiff was correct in her contention that the clock could not be deemed to have commenced to run on any cause of action until such time as she became aware of the particular error which gave rise to her complaint.

Reporter: L.O'S.

1 JUDGMENT of Kearns P. delivered the 10th day of December, 2010

2 The plaintiff was the complainant in a prosecution for rape brought against J.W. by the Director of Public Prosecutions. The accused was arrested on the 22 ^nd July, 1999 and the case was ultimately heard by the Central Criminal Court in May, 2003. It emerged during the course of the evidence at trial that, as a consequence of the unlawful arrest of J.W., certain admissions made by J.W. whilst in garda custody could not be placed before the jury. This difficulty arose because J.W. was arrested pursuant to the common law power of arrest for rape. However, at the time of the arrest, s. 3 of the Criminal Law Act 1997 had abolished the distinction between felonies and misdemeanours with the consequence that a garda member no longer had any common law power to arrest in respect of felonies. Thus whilst J.W. could have been arrested under s. 4 of the Criminal Justice Act 1984, this power was not exercised by the arresting garda on the occasion of the arrest. The learned trial judge (O'Higgins J.) thus held that J.W. was held in illegal custody in breach of his constitutional right to liberty and that any evidence obtained during the course of this illegal detention was, as a result, inadmissible in the proceedings before the Court.

3 The plaintiff understandably felt extremely aggrieved that, having been subjected to rape, and having undergone the ordeal of a trial in which she gave evidence, the prosecution's case collapsed as a result of such a basic error on the part of the arresting garda.

4 As a result these proceedings were commenced by plenary summons on the 26 ^th May, 2006. In the proceedings, the plaintiff claims damages arising from the alleged negligence and breach of duty of the defendants, notably the servants or agents of the third named defendant, in invoking a power of arrest that did not exist at the time of the purported arrest. The plaintiff asserts that the State has failed to vindicate her constitutional right to bodily integrity and to ensure that justice was achieved in her case.

5 Following the bringing of the proceedings, the defendants brought a motion to this Court for an order directing the trial of preliminary issues which effectively request that the Court should dismiss these proceedings on two grounds as follows:-

6 (1) The time limit for bringing the claim in question is statute barred by virtue of the Statute of Limitations 1957 as amended; and

7 (2) In the absence of mala fides in the performance of their investigative and prosecutorial functions, the Garda Síochána cannot be held liable in damages to the plaintiff in circumstances such as arose in the present case.

SUBMISSIONS MADE ON BEHALF OF THE PLAINTIFF

8 It was submitted on behalf of the plaintiff that her cause of action only accrued on the 28 ^th May, 2003, when it became apparent to her for the first time during the course of the trial that the common law power of arrest had been wrongfully exercised in this case. She could not have known she had a cause of action until then and as the proceedings were issued within three years of that event, they could not be considered to be statute barred.

9 In relation to any supposed immunity from suit on the part of the Garda Síochána, counsel on behalf of the plaintiff submitted that where a citizen's constitutional rights are infringed, a right to seek damages for such a breach exists when no other effective or sufficient remedy may be found (see The State (Quinn) v. Ryan[1965] I.R. 70; Byrne v. Ireland[1972]I.R. 241; and Meskell v. Córas Iompair Éireann[1973] I.R. 121).

10 Counsel further submitted that there was no doctrine of immunity available to the Garda Síochána which would afford a shield to them in all circumstances. It was submitted that the dictum of Costello P. in W. v. Ireland (No. 2)[1997] 2 I.R. 141 had been overtaken by more recent cases, including D.P.P. v. Cash[2007] I.E.H.C. 108; Hanahoe v. Hussey[1998] 3 I.R. 69; Gray v. Minister for Justice[2007] 2 I.R. 654; and Shortt v. Commissioner of An Garda Síochána[2007] 4 I.R. 587. Counsel for the plaintiff also placed reliance upon the recent decision of the European Court of Human Rights in McFarlane v. Ireland (no. 31333/06, 10 September 2010) as supporting the proposition that a claim for damages was sustainable on facts such as those which arose in the instant case.

11 A number of English cases were also opened to the Court, including Desmond v. The Chief Constable of Nottinghamshire Police [2009] E.W.H.C. 2362 (Q.B.). While successive decisions of the House of Lords beginning with Hill v. Chief Constable of West Yorkshire[1989] A.C. 53 had held, as a matter of public policy, that police were immune from actions for negligence in respect of their activities in the investigation and suppression of crime, Wyn Williams J. observed as follows in Desmond at para. 42:-

"It seems to me that the following principles can be distilled from the authorities cited above. First, the police are immune from an action in negligence at the suit of an individual if the damage complained of was caused by an act or omission in furtherance of the investigation or suppression of...