Osbourne v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 13 April 2006
• Neutral Citation: [2006] IEHC 117
• Date: 13 April 2006
• Court: High Court
• Docket Number: [1997 No. 2363P]

[2006] IEHC 117

THE HIGH COURT

[No. 2363P/1997]

OSBOURNE v MIN FOR JUSTICE & ORS

BETWEEN

ANN OSBOURNE

PLAINTIFF

AND

THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

LARCENY ACT 1916 S42(1)

LARCENY ACT 1916 S42

DPP v EDGEWORTH 2001 2 IR 131

AG v O'BRIEN 1965 IR 142

CRIMINAL LAW

Warrant

Search and seizure - Validity - Damages - Breach of constitutional rights - Tort - Personal rights - Invalid search warrant - Whether damages would be awarded for breach of rights - Whether breach deliberate and conscious violation of rights - Whether warrant can be issued to search potential escape route - Whether appearance of words "District Judge" on warrant issued by peace commissioner affects validity - Larceny Act 1916 (6 & 7 Geo 5, c 50), s.42 - Claim dismissed (1997/2363P - Clarke J - 13/4/2006) [2006] IEHC 117

Osbourne v Min for Justice & AG

: The plaintiff claimed damages for personal injuries arising from the forcible entry of the Gardai in possession of a warrant into her dwelling whilst attempting to apprehend her neighbour. The plaintiff alleged that the warrant was invalid.

Held by Clarke J. rejecting the plaintiff's claim, that the Gardai had a reasonable basis for believing that the warrants issued were bona fide and granted properly by the Peace Commissioner. The warrant was technically defective in so far as the Peace Commissioner failed to cross out the alternative description of "Peace Commissioner". The error did not invalidate the warrants. There was no conscious or deliberate breach of the plaintiff's rights.

Reporter: E.F.

1. Introduction

2 2 1.1 This case concerns an incident which took place on 15th August, 1995 when a number of members of An Garda Síochána were engaged in activities at Fitzgerald Park, Mounttown, Dun Laoghaire. There is no doubt but that an incident occurred on the occasion in question but there is considerable controversy as to certain important aspects of the facts and, in particular, facts relevant to this case. Arising out of the incident the plaintiff ("Ms. Osbourne") claims that she suffered significant personal injuries and claims damages (including aggravated damages) for such injuries and for what she claims were breaches of her constitutional rights.

3 3 1.2 As indicated above there is a significant controversy over certain aspects of the incident. However some aspects of what occurred can, on the evidence, be stated to be uncontroversial.

2. The Uncontested Facts

2 2 2.1 The Gardaí had an interest in a Robert Merrigan who lived in an apartment at Fitzgerald Park. It would appear that Mr. Merrigan was, at the relevant time, suspected of having committed a burglary at a house in Woodland Park which is a short distance from Fitzgerald Park. It would appear that a watch and a sum of money had been stolen from the house concerned and that the description of one of those allegedly involved matched that of Robert Merrigan.

3 3 2.2 On foot of that information an application was made on the 14th August, 1995 to a Peace Commissioner, Mr. Fergus Nestor, for a number of search warrants. Some controversy surrounds those search warrants and that is, therefore, an issue to which I will have to return.

4 4 2.3 In any event relying upon the search warrants a number of Gardaí attended at Fitzgerald Park on the evening of 15th August for the purposes of executing those search warrants. The warrants included one in respect of No. 44 Fitzgerald Park at which it would appear that a cousin of Robert Merrigan resided. A second warrant related to No. 45 Fitzgerald Park which is the property in which Ms. Osbourne lived. Both No. 44 and No. 45 are two storey dwellings within an apartment block. The front access is from a first floor external corridor. In both cases there is a rear balcony and it seems that it is relatively easy to go from one balcony to the next. There was thus relatively easy access at the rear from No. 44 to No. 45.

5 5 2.4 It does not appear to be in dispute that the Gardaí attempted, initially, to gain access to No. 44. It would seem on the evidence that Robert Merrigan was present at the relevant time in No. 44, that the Gardaí sought to execute the warrant in respect of that premises, that they were initially refused access and were preparing to break in the door to No. 44 when that door was opened allowing the Gardaí to enter. It would also appear that just as the Gardaí were entering Robert Merrigan left through the rear balcony and appeared to enter into the neighbouring dwelling at No. 45.

6 6 2.5 In those circumstances it would appear that the Garda in charge (then Sergeant now Inspector Hogan) went back to his car to obtain the warrant in respect of No. 45 which he had left in the car. While Inspector Hogan was engaged in that process two Gardaí would appear to have been left in No. 44 for the purposes of apprehending Mr. Merrigan in the event that he should come back into that property. A number of other Gardaí (probably 3) remained in the corridor outside of both Nos. 44 and 45.

7 7 2.6 When Inspector Hogan returned with the warrant in respect of No. 45 it would appear that Robert Merrigan was present in No. 45 when the Gardaí knocked at the door. Robert Merrigan asked the Gardaí whether they had a warrant and was informed that that was indeed the case. Notwithstanding this Robert Merrigan did not open the door and the Gardaí proceeded to break in.

8 8 2.7 Thereafter an attempt was made to arrest Robert Merrigan within No. 45 with a struggle ensuing between two Gardaí and Mr. Merrigan. It is also common case that the mother of Robert Merrigan, Frances Merrigan, arrived as the Gardaí were attempting to subdue Mr. Merrigan. It is common case that after a period Mr. Merrigan was subdued and was taken from the property under arrest by a number of Gardaí.

3. The Disputed Facts

2 2 3.1 In addition to the fact that there are issues about the search warrant used on the occasion in question there are number of factual disputes between the parties. On Ms. Osbourne's case she was sitting in a common area of the apartments with a number of friends drinking tea when a significant force of Gardaí arrived. She gave evidence that after a period she was informed that the Gardaí were "kicking our door". She gave evidence that she went up the ramp which leads to the outdoor corridor but that when she got to her apartment "the door was on the ground". She says that she then went into the apartment and found Robert Merrigan on a couch in the living room with his mother lying over him and two "very large policemen beating him with batons". She says that she asked the Gardaí to leave as her children were crying outside the door but was told to "f-off". She then says she was thrown against the mantelpiece in her living room and in the course of being manhandled out of the premises she "got a kick in the leg" and one the Gardaí stood on her foot. Two other witnesses were called on behalf of Ms. Osbourne who, at least in part, corroborated her account though in respect of one of those witnesses, Frances Merrigan, there was a significant difference of recollection as to whether she (Mrs. Merrigan) or Ms. Osbourne first arrived at the apartment.

3 3 3.2 The Garda account is quite different. None of the Gardaí present indicated that they had any recollection of seeing Ms. Osbourne. It would appear to be common case that a crowd gathered in the corridor near Ms. Osbourne's apartment as the incident developed. The precise size of that crowd and the extent to which it was, as asserted in the Garda evidence, hostile to the Garda operation are a matter of some controversy. It is accepted on behalf of the defendants that Ms. Osbourne may well have been present outside her apartment. In addition while the Garda evidence was to the effect that the crowd was significantly hostile to their presence there is no evidence which suggests hostility on the part of Ms. Osbourne.

4 4 3.3 Furthermore the Garda evidence was to the effect that no one was permitted to enter the apartment after the Gardaí had broken down the door, with the exception of Francis Merrigan whom, it was said, was permitted to enter with a view to her speaking to her son for the purposes of attempting to calm him down. On the basis of the Garda evidence, therefore, it is contended that Ms. Osborne never entered her apartment on the occasion in question. While there is no direct evidence from the Gardaí present as to any involvement on the part of Ms. Osborne it is accepted that it might have been possible that she received an injury in the course of the scuffles which the Gardaí contend occurred as Mr. Merrigan was being led from the apartment under arrest.

4. The Issues

2 2 4.1 The issues which arise in this case are, therefore:-

(a) The validity of the warrant under which the Gardaí forcibly entered Ms. Osbourne's apartment;

(b) The consequences, for the purposes of this action, of such a warrant being invalid (if that should be the case);

(c) Whether, as a matter of fact, Ms. Osbourne was injured, as she contends, while being physically removed from her apartment;

(d) Whether, if it should be found to be the case that she was so injured, same occurred in a manner giving rise to a claim in damages as against the Gardaí concerned;

(e) If necessary damages.

3 3 4.2 I propose dealing with each of those matters in the order in which I have set them out.

5. The Validity of the Warrant

2 2 5.1 Each of the relevant warrants was issued under s. 42(1) of the Larceny Act, 1916. The section provides as follows:-

"If it is made to appear by information on oath before a justice of the peace that...