M (L) (plaintiff) v Commissioner of an Garda Síochána and Others defendants):

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 20 January 2011
• Neutral Citation: [2011] IEHC 14
• Court: High Court
• Date: 20 January 2011

[2011] IEHC 14

THE HIGH COURT

[No. 16404 P/2004]

M (L) v Commissioner of An Garda Siochana & Ors

JUDICIAL REVIEW

BETWEEN

L. M.

PLAINTIFF

AND

THE COMMISSIONER OF AN GARDA SIOCHANA, THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

CONSTITUTION

STATUTE OF LIMITATIONS 1957

POLICE FORCES AMALGAMATION ACT 1925

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

DONOGHUE v STEVENSON 1932 AC 562 1932 SC (HL) 31 1932 SLT 317

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

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

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

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

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

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

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

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604 2005 2 ILRM 288 2005/17/3473 2005 IESC 33

EXTRADITION ACT 1965

BYRNE v IRELAND & AG 1972 IR 241

NELLES v ONTARIO 1989 2 SCR 170 60 DLR (4TH) 609

MCFARLANE v IRELAND 2011 52 EHRR 20

ELGUZOULI-DAF v METROPOLITAN POLICE CMSR & ANOR; MCBREARY v MINISTRY OF DEFENCE & ORS 1995 QB 335 1995 2 WLR 173 1995 1 AER 833

VAN COLLE & ANOR v CHIEF CONSTABLE OF HERTFORDSHIRE POLICE 2009 1 AC 225 2008 3 WLR 593 2008 3 AER 977

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

GULYAS & BORCHARDT v MIN FOR JUSTICE & ORS 2001 3 IR 216 2001/11/3091

CIVIL LEGAL AID ACT 1995 S26(3)(B)

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987 REG 21

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

HEGARTY v O'LOUGHRAN & EDWARDS 1990 1 IR 148 1990 ILRM 403

LOCKWOOD v IRELAND & ORS UNREP KEARNS 10.12.2010 2010 IEHC 430

NEGLIGENCE

Duty of care

Gardaí and prosecuting authorities - Trial prohibited - Prosecutorial delay -Whether actionable duty of care to carry out investigatory and prosecutorial functions with reasonable expedition - Principles to be applied - Whether public policy prevented duty of care being imposed - Whether just and reasonable to impose duty of care on gardaí and prosecuting authorities - Whether duty of performing function in public interest outweighed duty of care to private individuals - Whether constitutional duty of care - Beatty v Rent Tribunal [2006] 2 IR 191, W v Ireland (No 2) [1997] 2 IR 141, Byrne v Ireland [1972] IR 241, Hill v Chief Constable of West Yorkshire [1989] 1 AC 53, lguzuoli-Dafv v Commissioner of Police of the Metropolis [1995] 1 QB 335, Brooks v Metropolitan Police Commissioner [2005] 1 WLR 1495, Gray v Minister for Justice [2007] IEHC 52, [2007] 2 IR 654, Lockwood v Ireland [2010] IEHC 1, (Unrep, Kearns P, 10/12/2010), Osman v United Kingdom (2000) 29 EHRR 245 and Z v United Kingdom (2002) 34 EHRR 3 considered - McFarlane v Ireland [2010] ECHR 1272 (App 31333/06) (Unrep, ECHR, 10/9/2010) distinguished - Claim dismissed (2004/16404P - Hedigan J - 20/1/2011) [2011] IEHC 14

M (L) v Commissioner of An Garda Siochana

Facts The plaintiff, when aged 12 made a formal complaint of rape to An Garda Síochána against the alleged perpertator of the crime. A trial ensued, the alleged perpetrator was convicted and the Court of Criminal Appeal subsequently quashed the conviction. Thereafter the accused successfully brought judicial review proceedings to prohibit a retrial by reason of prosecutorial delay. The presiding judge had regard to the fact, described by him as extraordinary, that records were mislaid and that there was no system to track and date records. The plaintiff's mental condition had notably deteriorated with the collapse of the accused's trial and a diagnosis of post-traumatic stress disorder had been made. The plaintiff instituted the present proceedings seeking damages and various declaratory reliefs, contending that there had been failures on the part of the State authorities which constituted negligence and breach of duty. The plaintiff's constitutional right to bodily integrity and privacy had been breached as had her rights under the European Convention of Human Rights. .The plaintiff's deterioration was caused by distress occasioned by the fact that the plaintiff was denied justice due to the failure to properly pursue a prosecution on foot of her complaint. On behalf of the State authorities it was contended where a State body was performing a function that was in the public interest, this would outweigh any duty of care to private individuals. The European Court of Human Rights had accepted that in the substantive domestic law of certain member states there was no duty of care owed by public bodies such as the police and prosecutors. In regard to the claim under the Constitution, the breaches alleged did not impose a constitutional duty of care on the defendants to the plaintiff. It was further submitted that the plaintiff's case was statute barred pursuant to the Statute of Limitations, 1957.

Held by Hedigan J in finding that a duty of care was not owed. The key issue was whether it would be contrary to public policy to impose a duty of care on the Gardaí. Previous caselaw had not established that a duty of care existed upon the defendants in respect of their investigatory or prosecutorial functions. It would be contrary to the public interest to impose such a duty by reason of the inhibiting effect this would have on the proper exercise of the investigatory and prosecutorial functions. It was in the public interest that those bodies should perform their functions without the fear or threat of action against them by individuals. While the recognition of individualised justice might militate in favour of the recognition of a duty of care, there were compelling considerations rooted in the welfare of the whole community, which outweighed the dictates of individualised justice. This was not to say that such bodies were immune from actions for damages arising from ordinary principles of negligence. The absence of duty related only to their actions arising from their prosecutorial or investigatory functions.

Reporter: R.F.

1 Judgment of Mr. Justice Hedigan delivered the 20th day of January 2011.

2 1. This action arises from proceedings dated the 1 ^st February, 2010, wherein the President of the High Court ordered that a preliminary issue be tried on the following the questions;

3 1. Did the defendants owe to the plaintiff a duty of care (howsoever arising including a duty arising pursuant to the provisions of the Constitution and/or a fiduciary duty) as alleged in the statement of claim?

4 2. If so, is a breach of same actionable at the suit of the plaintiff?

5 3. Is the plaintiff's case statute barred pursuant to the provisions of the Statute of Limitations 1957 (as amended)?

6 2. The plaintiff resides in Ireland. The first named defendant is the person who enjoys general direction and control of An Garda Siochána, the force established pursuant to the provisions of the Police forces Amalgamation Act, 1925 and having his principal offices at Garda Headquarters, Phoenix Park, Dublin 7. The second named defendant is a Minister of the Government and a Corporation Sole and has his principal offices at the Department of Justice, Equality and Law Reform, 72-76 St. Stephen's Green, Dublin 2. The third named defendant is the person charged with the direction, control and supervision of prosecutions in the State and his office is located at Chapter House, 26-30 Upper Abbey Street, Dublin. The fourth named defendant is the Irish state. The fifth named defendant is the Law Officer of the state designated by the Constitution of Ireland and is charged with representing the public interest in respect of the Constitution. His office is located at Government Buildings, Upper Merrion Street, Dublin 2.

7 3. On the 4 ^th May, 1990, the plaintiff made a formal complaint of rape. She was 12 years old at the time. A statement was taken in or about 18 ^th May, 1990, from the plaintiff and a short statement was taken from her mother in or about December 1990. The plaintiff's complaints were validated by St Louise's Unit at Crumlin Hospital in Dublin. St. Louise's is a unit where children are assessed and treated following an allegation of sexual abuse. It appears that no further steps were taken by the defendants to advance the investigation until September 1996 when the English Child Protection Agency contacted An Garda Síochána. The child protection agency had been alerted to the complaint by a social worker in Tallaght following contact from the plaintiff's mother. In or about April 1997, English police interviewed the alleged perpetrator. In February, 1998, eight warrants for his arrest issued and he consented to his extradition back to Ireland. He was returned for trial on or about the 2 ^nd October, 1998. He was convicted of rape, unlawful carnal knowledge, incest and indecent assault and received a nine-year sentence. On the 3 ^rd December, 2001 the Court of Criminal Appeal quashed the conviction and a retrial was directed. Thereafter the accused brought judicial review proceedings to prohibit a retrial by reason of prosecutorial delay and this application was successful before Murphy J. The Judge had...