Mooney v Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 27 October 2017 |
| Neutral Citation | [2017] IECA 277 |
| Date | 27 October 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2017] IECA 277 Record No. 2016/251 |
[2017] IECA 277
THE COURT OF APPEAL
Hogan J.
Ryan P.
Peart J.
Hogan J.
Neutral Citation Number: [2017] IECA 277
Record No. 2016/251
AND
Negligence – Damages – Duty of care – Appellant seeking damages for negligence – Whether respondents' failure to treat the appellant fairly gives to actionable liability on the part of the respondents
Facts: The plaintiff/appellant, Mr Mooney, was admitted to the Witness Security Programme (WSP) operated by the defendant/respondent, An Garda Síochána, in November 2002. He was later to exit the programme at some stage in 2005. He sought damages and compensation in respect of the manner he was treated by members of the Gardaí in respect of his admission to the WSP and his treatment while a member of the programme. It was contended that the defendants were obliged to treat the plaintiff fairly, that they failed to do so and that their failure gives to actionable liability on the part of the State defendants. The High Court (Gilligan J) ruled against the plaintiff. The plaintiff appealed to the Court of Appeal against that decision contending that those findings and conclusions were insufficiently reasoned such as would warrant the non-application of the traditional Hay v O'Grady rule (Hay v O'Grady [1992] 1 IR 210) and a direction for a fresh trial.
Held by Hogan J that he would reject the plaintiff's arguments based on the inadequacy of the judge's fact finding or subsequent reasoning in his judgment; the judge gave very full and ample reasons for his factual findings and his conclusions. Hogan J assumed (without deciding) in the plaintiff's favour that the operation of the WSP did give rise to a justiciable controversy. Hogan J held that he would reject the contention that the defendants were guilty of the tort of misfeasance, upholding the findings of Gilligan J in that respect; the decision to bring about the exit of the plaintiff from the WSP was prompted by the realisation that the plaintiff was unsuitable and that his continued participation in the programme would simply serve to undermine its general efficaciousness. Hogan J held that the fact that the plaintiff was not properly screened for the programme did not in the circumstances amount to a breach of any duty of care, even if the State defendants owed the plaintiff such a duty in the first place.
Hogan J held that Gilligan J was correct in respect of the conclusions which he reached. Hogan J accordingly dismissed the appeal.
Appeal dismissed.
This is an appeal with an unusual background. The plaintiff, David Mooney, was admitted to the Witness Security Programme ('WSP') operated by An Garda Síochána in November 2002. He was later to exit the programme at some stage in 2005.
In these proceedings he has sought damages and compensation in respect of the manner he was treated by members of the Gardaí in respect of his admission to the WSP and his treatment while a member of the programme. While the cause or causes of action on which the plaintiff relies have at times remained somewhat elusive, the gist of the plaintiff's action appears to be principally in negligence. Specifically, it is contended that the defendants were obliged to treat the plaintiff fairly, that they failed to do so and that their failure to do so gives to actionable liability on the part of the State defendants.
This appeal is from the decision of Gilligan J. in the High Court: see Mooney v. Garda Commissioner (No.2) [2016] IEHC 252. While I will address in due course the factual findings and the conclusions reached by the trial judge, it is sufficient for present purposes to record at the outset that the plaintiff also contends that those findings and conclusions are insufficiently reasoned such as would warrant the non-application of the traditional Hay v. O'Grady rule ( Hay v. O'Grady [1992] 1 I.R. 210) and a direction for a fresh trial.
Gilligan J. had earlier ruled that this matter would be heard in camera: see Mooney v. Garda Commissioner (No.1) [2014] IEHC 155. This appeal was likewise heard in camera. While this judgment is being handed down in unredacted form, it is also appropriate to state that I have endeavoured to be circumspect in setting out certain details (which, in any event, are well known to the parties), save to the extent that this is strictly necessary.
Sometime in the early summer of 2002 the plaintiff, along with some other business acquaintances, proposed to open a nightclub in Dublin. He was approached by two named individuals who purported to represent an illegal organisation. They said that unless the plaintiff paid what amounted to protection money to that illegal organisation, the club premises would be destroyed and the business would never get off the ground.
It is accepted – and, indeed, Gilligan J. so found – that the plaintiff paid a substantial sum of money to the two individuals in question. A few nights after the premises opened, there was a disturbance at the premises. It appeared that the principals of the illegal organisation in question maintained that the two individuals to whom the money had been paid had used the money for their own purposes and not for the benefit of the organisation, so that fresh sums were being demanded.
In the wake of these incidents the plaintiff made contact with An Garda Siochána, and he agreed to provide a written statement in which he very clearly implicated the two individuals in illegal criminal activity. He further identified them following an identification parade.
By this stage the Gardaí involved in the case accepted that the plaintiff's life was in danger and this threat would be increased if he were to give evidence against the two individuals. On 30th August 2002, an application was made by the Special Detective Unit of An Garda Síochána to have the plaintiff admitted to the WSP. On the 19th December 2002, a meeting took place within An Garda Síochána at which it was agreed to admit the plaintiff into the programme, and the plaintiff was relocated within this jurisdiction. On the 10th February 2003, the plaintiff signed a protocol document ('the Entry Document') whereby he was formally inducted into the programme.
It is important to record at the outset that at this stage the WSP was in its relative infancy. Many of the persons who had heretofore been admitted to the programme had come from a criminal background and had decided to give evidence to An Garda Síochána implicating their former comrades. Mr. Mooney was unusual in that he was a person of good character. He was also prepared to give evidence in the Special Criminal Court implicating senior members of an illegal organisation in respect of their involvement in organised crime.
It is not really disputed but that participation in the WSP involves the protected person not only being re-located and assuming a new identity, but also that such person must then adopt a low and discreet social profile. The evidence suggests that not everyone is temperamentally suited for this type of subdued lifestyle and, indeed, for this reason, potential inductees into the WSP are generally subjected to some form of psychological screening in advance in order to gauge their suitability for this purpose.
In his judgment Gilligan J. summed up the difficulties which confronted the plaintiff thus:
'Throughout 2003, there were difficulties with the plaintiff's participation in the Witness Security Programme which is best explained by the plaintiff's particular personality, the type of lifestyle he had been used to living, the fact that he appears to have been a very outward going person who enjoyed a very full social life, the fact that there was clearly a personality clash between the plaintiff and his handlers within the Witness Security Programme, the fact that the plaintiff, to a significant extent, appears to have been out and about in public, and, on at least one occasion, indicated to a person he had just met that he was part of the Witness Security Programme. He indicated further to a number of people that he was a member of An Garda Síochána, a Detective Sergeant, and a member of certain other specialist divisions of An Garda Síochána. He indicated at times that he would not give evidence at the trial of the two individuals in the Special Criminal Court, and provided information to certain persons and sections of the media, all of which led to very strained relations between the plaintiff and his handlers leading into the trial of the two individuals which commenced in the Special Criminal Court.'
Despite these considerable difficulties, the plaintiff did in fact give evidence in the Special Criminal Court and this was a vital factor in the convictions of the two individuals in question. As Gilligan J. put it:
'The plaintiff gave his evidence during the course of the trial and was highly commended by the Court and described as a truthful and reliable witness. This aspect was heavily relied on in the Court of Criminal Appeal and, subsequently, in the Supreme Court, and again in the European Court [of Human Rights], and there is no doubt but that the plaintiff's evidence was the vital factor leading to the conviction of the two individuals who were each sentenced to four years imprisonment.'
The plaintiff found his participation in the WSP challenging and it would appear that he could not adjust to the social and other constraints of the programme. In the aftermath of the trial in the Special Criminal Court, a meeting was held in December 2003 with the plaintiff and the Gardaí. Gilligan J. found that the Gardaí...
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