Lorcan Roche Kelly v Commissioner of an Garda Síochána and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 30 April 2012
• Neutral Citation: [2015] IEHC 19
• Court: High Court
• Date: 30 April 2012

[2015] IEHC 19

THE HIGH COURT

[11050 P/2009]

[11021 P/2010]

Kelly v Commissioner of Garda Siochana & Ors

BETWEEN

LORCAN ROCHE KELLY

PLAINTIFF

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

LORCAN ROCHE KELLY

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

IRELAND AND THE ATTORNEY GENERAL

RSC O.19 r28

CIVIL LIABILITY ACT 1961 PART IV

SMYTH & ORS v CMSR OF AN GARDA SIOCHANA & ORS UNREP PEART 10.7.2014 2014 IEHC 453

BAIL ACT 1997 S2

WHELAN & LYNCH v ALLIED IRISH BANKS PLC & ORS UNREP SUPREME 30.1.2014 2014 IESC 3

LOCKWOOD v IRELAND 2011 1 IR 374 2012 1 ILRM 72 2010/30/7453 2010 IEHC 430

M (L) v CMSR OF AN GARDA SIOCHANA & ORS 2012 1 ILRM 132 2011/33/9324 2011 IEHC 14

G (A) v K (J) & ORS UNREP HEDIGAN 25.2.2011 2011/22/5769 2011 IEHC 65

HILL v CHIEF CONSTABLE OF WEST YORKSHIRE 1989 AC 53 1988 2 WLR 1049 1988 2 AER 238

GLENCAR EXPLORATIONS PLC & ANDAMAN RESOURCES PLC v MAYO CO COUNCIL (NO 2) 2002 1 IR 84 1993/3/568

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2(1)

MAIORANO & SERAFINI v ITALY 2014 ECHR 1324 (APPLICATION NO 997/05)

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EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

SALTHILL PROPERTIES LTD & CUNNINGHAM v ROYAL BANK OF SCOTLAND PLC & ORS UNREP CLARKE 30.4.2009 2009/52/13214 2009 IEHC 207

F (D) v GARDA CMSR & ORS UNREP HOGAN 11.4.2014 2014 IEHC 213

WARD v MCMASTER & ORS 1985 IR 29 1986 ILRM 43 1985/6/1600

BEATTY v RENT TRIBUNAL 2006 2 IR 191 2006 1 ILRM 164 2005/4/623 2005 IESC 66

OSMAN v UNITED KINGDOM 2000 29 EHRR 245

Z & ORS v UNITED KINGDOM 2002 34 EHRR 3

Rules of the Superior Courts – Reasonable Cause of Action – Negligence - Civil Liability Act 1961 – Public Policy – Liability – Practice and Procedure – Human Rights Obligations – Summary Strike Out Jurisdiction

Facts: This case concerned an application brought by the defendants pursuant to Order 19 rule 28 of the Rules of the Superior Courts seeking to have the Plaintiff”s claim dismissed or struck out on the grounds that the pleadings disclosed no reasonable cause of action and that, on the basis of existing law, the Plaintiff”s claim was bound to fail. The claim was one for damages brought pursuant to the provisions of Part IV of the Civil Liability Act 1961 by the plaintiff on his own behalf and on behalf of his two children, and other family members of his wife who had been murdered by McGrath. The plaintiff claimed that the failure and inaction of the defendants, in the context of a bail application, to inform the relevant court of certain other offences with which McGrath had been charged caused or contributed to the fact that he was at large and on bail when he should not have been and that the plaintiff was thus entitled to maintain an action in negligence against the various defendants.

Held by Justice Kearns in light of the evidence presented and the submissions made that the failure of An Garda Síochána to fully advise the judges called upon to address issues of bail in respect of a number of serious incidents was both negligent and disgraceful. It deprived the judiciary of the opportunity to properly evaluate the facts in relation to McGraths ongoing liberty, which Justice Kearns reasoned would have resulted in a possible refusal of bail if the full facts had been made known to either court. Nevertheless, in the opinion of the Court it was determined that it could not be said that there existed in this case the requisite degree of proximity between the deceased and her killer or that her death was reasonably foreseeable from any of the information available. The victim and assailant were unknown to each other and to say that requirements of proximity and foreseeability were met merely because of the gender of the deceased was not, according to Justice Kearns, a sustainable proposition. It was further determined that An Garda Síochána did not owe some sort of special responsibility towards Sylvia Roche Kelly as distinct from the public in general. Consequently, the Court dismissed the plaintiff”s claim, not on the basis of some supposed “blanket immunity” but because long established common law principles whereby a duty of care is deemed to arise were not present on the facts of this case.

1 30th day of April 2012

2 JUDGMENT of Kearns P. delivered on the 23rd day of January, 2015

3 This is an application brought by the defendants pursuant to Order 19 rule 28 of the Rules of the Superior Courts seeking to have the Plaintiff's claim dismissed or struck out on the grounds that the pleadings disclose no reasonable cause of action and that, on the basis of existing law, the Plaintiff's claim is bound to fail.

4 The plaintiff is a former miner who resides with his two children at Ballintlea, Sixmilebridge, Co. Clare. He is the lawful husband of Sylvia Roche Kelly who was bom on the 7 ^th December, 1974 and who was murdered by one Gerry McGrath on the 8 ^th December, 2007. Letters of Administration in the Estate of Sylvia Roche Kelly were granted to the plaintiff on the 23 ^rd April, 2008. The present claim is one for damages brought pursuant to the provisions of Part IV of the Civil Liability Act 1961 by the plaintiff on his own behalf and on behalf of his two children, aged respectively twenty and eleven years, and other family members of the deceased.

5 In these proceedings, the plaintiff claims that the failure and inaction of the defendants, in the context of a bail application, to inform the relevant court of certain other offences with which McGrath had been charged caused or contributed to the fact that he was at large and on bail when he should not have been and that the plaintiff is in the particular circumstances entitled to maintain an action in negligence against the various defendants herein.

FACTUAL BACKGROUND

6 The following chronology of events sets out the background circumstances of relevance:-

Date	Event
1) 30 th April, 2007	Accused assaults a female taxicab driver in Cavan:
	Admitted to station bail;
2) 17 th May, 2007	Accused appears at Virginia District Court:
	Remanded on continuing bail;
3) 9 th October, 2007	Accused is arrested at the scene of an abduction and false imprisonment of a young girl in Dundrum, Co. Tipperary. Gardai object to bail.
4) 10 th October, 2007	Accused appears at Limerick District Court and is remanded in custody;
5) 23 rd October, 2007	Accused appears in Tipperary District Court

	and is again remanded in custody.
6) 30 th October, 2007	Bail hearing Limerick District Court. Gardai object to bail but fail to bring taxi driver assault case to attention of District Judge.
	Accused is admitted to bail.
7) 12 th November, 2007	The Director of Public Prosecutions directs that more serious charges be brought in relation to the Cavan incident;
8) 3 rd December, 2007	The accused is charged at Virginia District court, inter alia, with assault causing harm. The accused is remanded on continuing bail. No mention of remand by Limerick District Court;
9) 8 th December, 2007	Accused murders Sylva Roche Kelly in Limerick.

7 Thereafter, on the 7 ^th January, 2008 the accused pleaded guilty to the charges arising out of the assault on the 30 ^th April, 2007 in Cavan. The accused received a nine-month sentence in respect of these offences.

8 On the 12 ^th January, 2009 the accused received the mandatory life sentence for the murder of Ms. Roche Kelly from the Central Criminal Court.

9 On the 13 ^th February, 2009 the accused attended Clonmel Circuit Court where he received a ten-year prison sentence in relation to the Dundrum offences, which was made concurrent with the life sentence imposed on the 12 ^th January, 2009.

10 In the present proceedings brought against the defendants arising out of the aforesaid events, multiple allegations of negligence and breach of duty are raised, but the main allegations are of failure by the gardaí to inform Virginia District Court of the offences in Dundrum, Co. Tipperary in relation to which the accused had been arrested at the scene on the 9 ^th October, 2007 and their failure to seek the revocation of the bail of the accused on the 3 ^rd December, 2007. It is further alleged that the gardaí were negligent in failing to inform the District Judge at the bail hearing at Limerick District Court on the 30 ^th October, 2007 that the accused had been charged with an assault on a female taxi driver in Cavan on the 30 ^th April, 2007, thereby bringing about a situation whereby the accused was allowed to remain at liberty. The murder of Sylvia Roche Kelly took place on the 8 ^th December, 2007, five days after the failure to apply to revoke bail at the sitting of Virginia District Court on the 3 ^rd December, 2007.

11 It was not suggested in the present proceedings that there had been malfeasance on the part of the gardaí. It was accepted that in general the law, in the absence of mala fides, does not impose an actionable duty of care on gardaí in respect of the performance of their duties. Nevertheless, it was submitted that the recent decision of the High Court (Peart J.) in Smyth & Anor. v. The Commissioner of An Garda Síochána & Ors [2014] IEHC 453 suggested that this was not a principle conferring a 'blanket immunity' in all circumstances but rather a principle which admitted of exceptions in special circumstances. It was contended that, having regard to the plain obligation on the gardaí to bring forward certain matters for the attention of a judge dealing with a bail application, the failure of the respondents in this instance to do so was a failure of such egregious...