Shortt v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman,Murray C.J.
• Judgment Date: 21 March 2007
• Neutral Citation: [2007] IESC 9
• Date: 21 March 2007
• Court: Supreme Court
• Docket Number: [S.C. No.

Shortt v Commissioner of An Garda Síochána & Ors

Between

FRANCIS SHORTT

plaintiff

-v-

THE COMMISSIONER OF AN GARDA SíOCHáNA, IRELAND AND THE ATTORNEY GENERAL

defendants

[2007] IESC 9

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

394/05

THE SUPREME COURT

Abstract:

Tort law - Compensatory damages - Aggravated damages - Exemplary damages - Whether the award of damages made in the High Court was sufficient to compensate the plaintiff for the wrongs he suffered as a result of the disreputable conduct of the defendants - Criminal Procedure Act, 1993

The plaintiff appealed against the quantum of damages awarded by the High Court for the wrongs he suffered as a result of disreputable conduct and shocking abuse of power by two members of An Garda Siochana, specifically the concocting of evidence which led to the plaintiff's conviction for knowingly allowing drugs to be sold on his premises and resulted in a three year custodial sentence. The plaintiff's conviction was ultimately set aside and the Court of Criminal Appeal certified that he had been the subject of a miscarriage of justice. The learned trial judge in the High Court awarded the plaintiff the total sum of Eur1,923,871.00 by way of compensation. The learned trial judge excluded the making of an award under the heading of aggravated damages on the basis that it would constitute double compensation having regard to the award for general damages and reduced the award for exemplary damages so as to avoid providing double compensation to the plaintiff.

Held by the Supreme Court (Murray C.J., Denham, Hardiman, Geoghegan, Fennelly JJ) in allowing the appeal and substituting an award of a total of Eur4,623,871.00 to the plaintiff against the defendants: 1. That the plaintiff was entitled to general damages far in excess of that awarded in the High Court. The appropriate approach in this case was to make a global award that included ordinary general damages and aggravated damages. Furthermore, any future aspect of the plaintiff's damages was to be taken into account in the overall award of compensatory damages. The plaintiff was entitled to an award of Eur2,250,000.00 by way of compensatory damages.

2. That in this case the grounds for exemplary damages were compelling and it was necessary in order to display the court's level of disapproval with the conduct of the two Gardai to make a separate and distinct award under this heading and the sum of Eur1,000,000.00 was appropriate.

3. That the plaintiff's appeal against the learned trial judge's findings in relation to special damages failed as the judge in assessing the plaintiff's losses in that regard relied on facts which he was entitled to find on the basis of the evidence before him and the inferences drawn from those facts were reasonable and correct.

Reporter: L.O'S.

SHORTT v DPP 2002 2 IR 686 2002/26/6627

CONWAY v IRISH NATIONAL TEACHERS ORGANISATION (INTO) 1991 2 IR 305

DE ROSSA v INDEPENDENT NEWSPAPERS PLC 1999 4 IR 432

OFFENCES AGAINST THE STATE ACT 1939 S30

CROFTER PROPERTIES LTD v GENPORT LTD 2005 4 IR 28 2005 2 ILRM 262

CRIMINAL PROCEDURE ACT 1993 S9

MORRIS REPORT OF THE TRIBUNAL OF INQUIRY SET UP PURSUANT TO THE TRIBUNALS OF INQUIRY (EVIDENCE) ACTS 1921-2002 INTO CERTAIN GARDAI IN THE DONEGAL DIVISION PARA 13.101

US v SALERNO 481 US 697

COOPER v O'CONNELL UNREP SUPREME 5.6.1997 1997/14/4946

WALSHE v BEDFORD & ORS UNREP FENNESSY 28.7.2005 2005/58/12098 2005 IESC 51

KELLY v AG & IRELAND 1986 ILRM 318 1986/3/1027

MCINTYRE v LEWIS 1991 1 IR 121

SHORTT v DPP 2002 2 IR 696 2002/25/6428

CRIMINAL PROCEDURE ACT 1993 S2

CRIMINAL PROCEDURE ACT 1993 S1(9)

KENNEDY v IRELAND 1987 IR 587

WHITE IRISH LAW OF DAMAGES 1989 7 FIG 1

REDDY v BATES 1983 1 IR 143

ROOKES v BARNARD 1964 AC 1129

1 JUDGMENT of Murray C.J. delivered on the 21st day of March, 2007

2 The plaintiff, Mr. Shortt, has been the victim of disreputable conduct and a shocking abuse of power on the part of two Garda officers, namely a Superintendent and a Detective Garda. They both engaged in a conspiracy to concoct false evidence against the plaintiff which in turn resulted in perjured Garda evidence being given at his trial for allegedly permitting drugs to be sold in his licensed premises in Co. Donegal in 1992. That perjury procured his conviction by a jury. What followed as a consequence for the plaintiff was a tormenting saga of imprisonment, mental and physical deterioration, estrangement from family, loss of business, public and professional ignominy and despair. Furthermore, as the learned High Court Judge put it, "[T]he plaintiff was sacrificed in order to assist the career ambitions of a number of members of the Garda Síochána."

3 Driven by the injustice of his situation he finally obtained an Order setting aside his conviction by the Court of Criminal Appeal in November 1992 when the D.P.P., for reasons that were never disclosed to that Court, consented to such an Order. Finally in July 2002 the Court of Criminal Appeal certified that he had been the subject of a miscarriage of justice. In proceedings subsequently initiated before the High Court he was awarded damages for the wrongs which he has suffered. He has appealed against the award of damages made by the High Court on the grounds that those damages are inadequate. The sole issue in this appeal therefore concerns the amount of compensatory damages and exemplary or punitive damages to which he is entitled.

4 Unfortunately, the conduct of the Garda officers before, during and following the trial and associated circumstances cannot but reflect negatively on the Garda Síochána.

5 However, it must also be borne in mind, that there are currently upwards of 12,000 members of An Garda Síochána serving in the community. The Garda Síochána, having as its role the maintenance of law and order, the enforcement of the law and protecting the security of the State, is an institution which, since its foundation in 1922, has been an essential part of our democratic fabric.

6 Its members, as over 80 years of history records, have served the community with dedication and often with great bravery at the risk of or actual loss of life. Exceptional or spectacular successes in combating crime are usually well publicised but on a day to day basis the individual Garda member invariably works unpublicised within all sections of the community but particularly on the margins of society where they have to confront determined criminals willing to use every means at their disposal, including wanton violence, to further their ends. They are the first line of defence against hardened criminals who have not the slightest regard for the interests of the individual citizen be they young or old. On a daily basis, or rather on a nightly basis, they may have to confront, in a whole range of situations from street crime to domestic violence, individuals, drunk or otherwise, who are hostile or offensive towards them. Its members in these difficult situations traditionally exercise their powers with discipline and restraint.

7 There are also a myriad of situations in which the Garda member must undertake, as a matter of duty, difficult and personally painful tasks whether it be the recovery and handling of a decomposed body from a river or premises, removing a mutilated body of a person or child from a crashed motorcar or informing a parent or spouse of the death of a loved one. They also serve the community in what might be called a more positive role such as by way their programme of support for the victims of crime, the Garda Primary Schools Programme, the Youth Diversion Project which has as its aim the rehabilitation of young offenders, support for neighbourhood watch schemes, to name but some of the forces' direct community projects.

8 As I have already mentioned much of the day to day dedication of members of the Garda force in difficult circumstances goes unpublicised and perhaps unrecognised. Nonetheless it is because of its consistent tradition of dedicated public service that the Garda Síochána has obtained and retains to this day the general support and respect of the community at large.

9 Unfortunately, as experience in this country and other countries demonstrate, departures, sometimes the gravest of deviations, from normal standards of conduct and professionalism occur in police forces. Left unchecked there is always a risk that low standards will infect elements of such a force.

10 One cannot but be aware of reports of the evidence placed before and being enquired into by the Morris Tribunal in relation to Garda conduct and operations in Co. Donegal. Neither that evidence, nor any interim findings of the Tribunal, are before us but the facts and circumstances of this case emanate from that county and involve specific individuals who were serving members of An Garda Síochána at the relevant time.

11 The conduct of those two members probably constitutes the gravest dereliction of duty and abuse of power that one could ever fearfully contemplate would be engaged in by servants of the State and officers of law and order. Partly, but by no means solely, because they have sullied the reputation of the Garda Síochána the gravest view must be taken of their conduct.

12 This affair is regrettably a stain of the darkest dye on the otherwise generally fine tradition of the institution of An Garda Síochána. The facts and circumstances are a pot of iniquity which may be seen by some as reflecting on the Garda Síochána as a whole much to the potential demoralisation of upstanding members of the force which constitute the vast majority. Such a broad conclusion would be an unwarranted and disproportionate response to this affair however badly it may be...