Murphy v Attorney General

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 02 June 2016
• Neutral Citation: [2016] IESC 27
• Date: 02 June 2016
• Court: Supreme Court
• Docket Number: High Court record number: 1999/6786 P Supreme Court appeal number: 266/2003 [2016] IESC

[2016] IESC 27

An Chuirt Uachtarach

The Supreme Court

Charleton J.

High Court record number: 1999/6786 P

Supreme Court appeal number: 266/2003

[2016] IESC

Clarke J

Dunne J

Charleton J

Between

Stephen Murphy junior

and

Ann Murphy

Plaintiffs/Appellants

- and -

The Attorney General, the Director of Public Prosecutions, the Garda Commissioner, Judge JB Wallace, Superintendent JP Twomey, Garda M J McCarthy, John McCarthy

and

Dermot McCarthy

Defendants/Respondents

Malicious prosecution – Breach of human rights – False imprisonment – Appellants seeking damages for malicious prosecution – Whether appellant was falsely imprisoned

Facts: The appellants, Mr Murphy and his sister Ms Murphy, live in rural Co. Cork where their house and gardens are substantially surrounded by the lands of the seventh and eighth respondents, Mr J McCarthy and Mr D McCarthy. Disquiet arose whenever the McCarthys drove their herd of cattle on the public roadway in front of the Murphy residence. The Murphy family came to believe that cow dung was abundantly left around their home and that fumes from the excrement on the roadway caused serious illness to some of the family.?There were calls to the Gardaí through 1994 and 1995 and in June 1996 there were incidents on the roadway. These resulted in prosecutions for public order offences against the Murphys. The prosecutions were for multiple incidents over the period 27th and 29th of June 1996. Out of those prosecutions there were convictions in the District Court against the appellants. Some were overturned in the Circuit Court and some were quashed in judicial review proceedings in circumstances where the second respondent, the DPP, accepted that they could not stand. An action claiming malicious prosecution on all of those summonses was launched by the appellants in June 1999. The High Court dismissed the action, holding that there was a total absence of proof that the Gardaí had acted in the absence of reasonable and probable cause. Ms Murphy also claimed to have been falsely imprisoned by being forced off the public roadway outside her house. In July 2003, the appellants claimed a breach of their human rights, forgery, that they were framed, that the judiciary only listen to gardaí and other broadsides. In a wide-ranging series of alleged torts, including false imprisonment, it was claimed that the Murphys were entrapped into a crime by the respondents and that they had tape recorded at least one of their court appearances. They alleged that the sixth respondent, Garda McCarthy, was on the side of the McCarthy family and a close friend who should never have been involved in the investigation. The High Court dismissed the action and the appellants appealed to the Supreme Court.

Held by Charleton J that what occurred in this case did not amount to the false imprisonment of Ms Murphy but rather a completely justifiable action by the gardaí to defuse a potentially dangerous situation. Charleton J held that there was reasonable and probable cause for the initiation of a prosecution against her on the basis of the actions described in witness statements and accepted in the course of the judicial process in the District Court. Charleton J held that any allegations of bias against Garda McCarthy were unfounded.

Charleton J held that no prosecution should have been either recommended or initiated against Mr Murphy for any event on the 27th June 1996 that required him to have been first of all given a direction to do something or to desist from doing something by a member of An Garda Síochána; this applied to two of the charges laid against him in respect of that day. Charleton J noted that it was unfortunate that, however it occurred, there must have been evidence before the District Court whereby the judge came to the conclusion that Mr Murphy had been present on at least one of the two occasions when members of the gardaí had been attempting to control the situation involving a pandemonium of cattle and people at 09:30 hours and at 16:30 hours. Charleton J held that Mr Murphy pursued the correct tort and that he was entitled to the expenses of?coming all the way to the Supreme Court to sort the situation out.

Appeal dismissed in part.

Judgment of Mr Justice Peter Charleton , delivered on Thursday, June 2 ^nd 2016

1 The Murphy family, now consisting of the plaintiffs/appellants Stephen Murphy junior and his sister Ann Murphy, live in rural County Cork where their house and gardens are substantially surrounded by the lands of the McCarthy family; John McCarthy and Dermot McCarthy, who are the 7 ^th and 8 ^th defendants/respondents. As the events in question date back to 1996, matters have since moved on. The dispute between the neighbouring families dates back a further 2 years. Apparently, and without forming a judgment, the reclamation of some land by the McCarthys affected a water source to the Murphy household. There was no litigation about that, but a feeling of injustice was ever after part of the Murphys' attitude. This, in turn, translated into disquiet and anger whenever the McCarthys drove their herd of cattle on the public roadway in front of the Murphy residence. Again, forming no view, an emotional reaction seized the Murphy family and they came to believe that cow dung was abundantly left around their home and that fumes from the excrement on the roadway caused serious illness to some of the family. Confusion as to who was who in this dispute was liable to arise since the late Stephen Murphy, the father of the plaintiff/appellant, shared the same name with his son. Finally, to add to the mix, as can be seen, Garda Michael J McCarthy as 6 ^th named defendant/respondent shares a very common family name, especially for Cork, with the McCarthys. He is no relation, but he did have a shared interest in horse breeding and showing and served on committees with one or other of the McCarthys.

2 It is clear that members of the Murphy family became very agitated by the cattle situation. Thus, there were calls to the gardaí through 1994 and 1995 and in June 1996 there were incidents on the roadway. These resulted in prosecutions for public order offences against three of the Murphys, Stephen senior, his son Stephen junior, and Ann, his daughter. The prosecutions were for multiple incidents over the period 27 ^th and 29 ^th of June 1996. Out of those prosecutions there were convictions in the District Court, those relevant being against Stephen junior and Ann, the Murphys then being represented. Some were overturned in the Circuit Court, the Murphys then being unrepresented, and some were quashed in judicial review proceedings in circumstances where the Director of Public Prosecutions accepted that they could not stand, the Murphys again being unrepresented. In consequence, this action claiming malicious prosecution on all of these summonses was personally launched by Stephen Murphy junior and his sister Ann Murphy by plenary summons dated 30 ^th June 1999. It came on for hearing before O Caoimh J on 20 ^th and 21 ^st May 2003 in the High Court. He dismissed the action, holding that there was a total absence of proof that the gardaí had acted in the absence of reasonable and probable cause. He further held that the gardaí had not acted maliciously in prosecuting the Murphys. Ann Murphy also claims to have been falsely imprisoned, not as is typical of such cases, through being arrested, which she was not, but by being forced off the public roadway outside her house.

3 A notice of appeal was lodged by the Murphys on 4 ^th July 2003, in which they claimed a breach of their human rights, forgery, that they were framed, that the judiciary only listen to gardaí and other ill-considered broadsides. In all, this legal document echoes the angry language of the other pleadings in the case, particularly the statement of claim, undated, which likens the gardaí to ?Black [and] Tans?, ?Nazi Gestapo? and ?Blue Shirts?. In a wide-ranging series of alleged torts, including false imprisonment, it is claimed that the Murphys were entrapped into a crime by the defendants and that they had tape recorded at least one of their court appearances. The statement of claim is a narrative which does not differentiate between the wrongs allegedly done to the plaintiffs and is unspecific as to times, apparently claiming in respect of 27 ^th and 29 ^th June 1996 but at the same time, generally agitating the unfairness of the court system and nastiness of the gardaí in respect of all of the prosecutions. A large part of this, and of the submissions to this Court on appeal, allege that Garda McCarthy was on the side of the McCarthy family and a close friend who should never have been involved in the investigation. In consequence, the Murphys claim to be the victims of malice. At the trial in the High Court, by apparent agreement with everyone, the torts identified as being capable of being litigated by the Murphys were of malicious prosecution of them both and of their father and the false imprisonment of Ann Murphy.

Lay litigants

4 People go to law school in order to be trained not only in the law but in the presentation of facts. Avoiding confusion and sorting out events and warning against falling into factual errors is part of the art of presenting a case. When lay litigants pursue a case, there is likely to be confusion but that usually is the least of the problems. Often people feel aggrieved by some real or perceived personal wrong and added to that is the conviction that the administrative system or legal structure of the State has let them down. One characteristic of this is the serial addition of defendants as wrong allegedly piles upon wrong, which in some cases looms as the perception of persecution. Thus, the job of a judge is; to attempt to dispel the...