Mooney v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 15 March 2016
• Neutral Citation: [2016] IEHC 252
• Docket Number: [2012 No. 5808 P]
• Court: High Court
• Date: 15 March 2016

[2016] IEHC 252

THE HIGH COURT

Gilligan J.

[2012 No. 5808 P]

BETWEEN:

DAVID MOONEY

PLAINTIFF

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA, IRELAND,

AND

THE ATTORNEY GENERAL

DEFENDANTS

Contract – Breach of contract – Damages & Restitution – Oral representations – Enforceability of an oral contract – Witness Security Programme – Doctrine of legitimate expectation

Facts: The plaintiff sought an order for directing the defendants to put him in the witness security programme [WSP) and provide him the benefits as conveyed by the members of An Garda Siochana via their various representations made to the plaintiff. The plaintiff contended that notwithstanding that the said programme was non-statutory, the An Garda Siochana was mandated to observe fair procedures and they owed duty of care to the third parties. The plaintiff contended that he had entered into the said programme on the assumption of getting certain benefits specifically, relocation to another country, and thus, the doctrine of legitimate expectation was applicable in the present case. The first named defendant alleged that since the plaintiff had contravened the provisions of the relevant documents, he was removed from the WSP.

Mr. Justice Gilligan refused to grant the desired reliefs to the plaintiff. The Court held that notwithstanding the initial co-operation and support given by the plaintiff to the first named defendant, the plaintiff had breached the provisions of the relevant entry document, thereby causing his early release from the WSP. The Court held that the plaintiff had no reason to believe that the defendants would resile from their commitments while, in fact, the plaintiff did. The Court held that there was no sufficient evidence to prove that the first named defendant had made specific representations to the extent that the plaintiff would be relocated to another country and the discussions pertaining to that were rather general in nature.

JUDGMENT of Mr. Justice Gilligan , delivered on the 15th day of March, 2016.

1 The plaintiff in these proceedings, which were held in camera, alleges that as a result of representations made to him, he entered into the Witness Security Programme giving evidence against two identified individuals who were convicted and sentenced to terms of imprisonment. He alleges that members of An Garda Siochana made a number of verbal representations to him which would have resulted, inter alia, in him being provided with a very substantial sum of money, with a new identity, and relocated abroad in a specified country of his choice, with all the necessary documents, to enable him to start a new life and to work in the specified country. 2. The plaintiff contends that the defendants failed to honour the representations as made to him on their behalf and as a result he has suffered loss and damage, and in particular he claims the following reliefs:-

1. An Order directing the defendants and each of them, their servants or agents, to take all necessary steps to place the plaintiff in the State's Witness Protection Programme and to provide him with the benefits thereof;

2. A Declaration that the plaintiff and the defendants entered into a binding agreement, which is still enforceable, whereby in return for the defendants' promise to place the plaintiff in the State's Witness Protection Programme the plaintiff agreed to provide certain information to the Gardai and to give certain evidence at the trial of two individuals who, partly on foot of that evidence, were subsequently convicted;

3. An Order for specific performance of the said agreement;

4. A Declaration that the defendants, their servants or agents were guilty of misfeasance in Public Office and/or of abuse of the said office in pursuing a course of conduct (by making representations to the plaintiff that he would be protected by means of being admitted into the defendants' Witness Protection Programme) designed to induce the plaintiff to provide certain information to the Gardai and to give certain evidence at a criminal trial, in the knowledge that failure to follow through on those promises or to take any bona fide steps to honour same would expose the plaintiff to grave risk to his physical and mental wellbeing, bodily integrity and his ability to earn a livelihood;

5. Damages for breach of contract;

6. Damages for negligence, breach of duty, and misrepresentations;

7. Damages for breach of legitimate expectation;

8. Damages for breach of the plaintiff's constitutional rights;

9. Damages for misfeasance in Public Office;

10. Damages for deliberate and/or reckless infringement by the holders of Public Office of the plaintiff's constitutional rights to his psychological and bodily integrity and right to earn a livelihood;

11. Exemplary, punitive and/or aggravated damages;

12. Such further or other relief as this Honourable Court shall seem fit;

13. Interest pursuant to the Courts Act, 1981;

14. Costs.'

3 The various allegations as made on the plaintiff's behalf and the reliefs as sought are all denied on the defendants' behalf and in particular, it is alleged that the Witness Security Programme is a non-statutory scheme operated by An Garda Síochána whereby witnesses to criminal offences can be protected by means of the provision of various services and facilities ranging from the provision of security advice to full relocation and identity change where appropriate. The extent of the participation of a given witness is determined by reference to the extent of the security threat against that witness. It is submitted on the defendants' behalf that the determination of An Garda Síochána as to the extent of the protection necessitated in a given case is based on an expert assessment of all of the relevant information and by its nature is not amenable to review. Moreover, the defendants' contend that the nature of the function exercised by An Garda Síochána in deciding the extent of the protection to be afforded to a witness is in the nature of a function which is incapable of giving rise to a duty of care as pleaded by the plaintiff.

4 At the commencement of the hearing, it was clarified on the plaintiff's behalf that:

• The plaintiff asked the court to note the evidence that there is still a real and ongoing risk to the plaintiff's life and to note the commitments of the defendants in that regard allowing the parties liberty to apply.

• The plaintiff seeks damages in a sum of €600,000.00 being made up of the sums of €350,000.00 and €250,000.00, which the plaintiff alleges was represented to him by a member of An Garda Siochána as being the appropriate sums for starting a business and purchasing a house.

• The plaintiff no longer seeks specific performance of the alleged agreement as entered into between himself and the Commissioner of An Garda Síochána.

Background

5 The background details of this case are that in or about May/June, 2002, the plaintiff, in association with a number of other persons, opened a nightclub in Dublin. The plaintiff was approached by two individuals who indicated to him that unless he paid protection money to them on behalf of the IRA for use to support prisoners' wives, the club premises would be destroyed and the business would never get off the ground.

6 It is not disputed but that the plaintiff paid a substantial sum of money to the two individuals, but unfortunately, in any event, a few nights after the club had opened there was a very substantial orchestrated disturbance as a result of which the plaintiff made a complaint to An Garda Siochána, and agreed to provide a written statement in which he very clearly implicated the two individuals in illegal criminal activity, and this brought the plaintiff to the attention of higher officials within An Garda Siochána who assessed the plaintiff, accepted that his life was under serious threat if he was to give evidence against the two individuals and, on the 30th August, 2002, an application was made by the Special Detective Unit of An Garda Siochána to have the plaintiff admitted to the Witness Security Programme. On the 19th December, 2002, a meeting took place within An Garda Siochána 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'). 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 Siochána, a Detective Sergeant, and a member of certain other specialist divisions of An Garda Siochána. 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.

7 It is of some significance to state that the plaintiff was a person who had no criminal record whatsoever and was an unusual subject to be taken into the Witness Security Programme, and was one of the first Irish...