W. v Ireland (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 11 April 1997
• Date: 11 April 1997
• Docket Number: [1995 No. 4114P]
• Court: High Court

High Court

[1995 No. 4114P]

W. v. Ireland (No. 2)

W.

Plaintiff

and

Ireland, the Attorney General and The Government of Ireland, Defendants (No. 2)

Cases mentioned in this report:

Anns v. Merton London Borough [1978] A.C. 728; [1977] 2 W.L.R. 1024; [1977] 2 All E.R. 492; 121 S.J. 377; 75 LGR. 555 H.L.

Byrne v. Ireland [1972] I.R. 241.

Convery v. Dublin County Council [1996] 3 I.R. 153.

Deighan v. Ireland [1995] 2 I.R. 56; [1995] 1 I.L.R.M. 88.

Donoghue v. Stevenson [1932] A.C. 562; [1932] All. E.R. 1; 101 L.J.P.C. 119; 48 T.L.R. 494; 37 Com. Cas. 350.

Elguzuoli-Daf v. Commissioner of Police [1995] Q.B. 335; [1995] 2 W.L.R. 173; [1995] 1 All. E.R. 833.

Garnett v. Ferrant (1827) 6 B. and C. 611; 9 Dow. & Ry. K.B. 657.

Hanrahan v. Merck, Sharp & Dohme (Ireland) Ltd. [1988] I.L.R.M. 629.

Hill v. Chief Constable of West Yorkshire [1989] A.C. 53; [1988] 2 W.L.R. 1049; [1988] 2 All. E.R. 238.

John C. Doherty Timber Ltd. v. Drogheda Harbour Commissioners[1993] 1 I.R. 315; [1993] I.L.R.M. 401.

Kearney v. Minister for Justice [1986] I.R. 116; [1987] I.L.R.M. 52.

Kennedy v. Ireland [1987] I.R. 587; [1988] I.L.R.M. 472.

Lovett v. Gogan [1995] 3 I.R. 132; [1995] 1 I.L.R.M. 12.

McHugh v. Commissioner of An Garda Síochána [1986] I.R. 228; [1987] I.L.R.M. 181; [1985] I.L.R.M. 606.

McMahon v. Ireland [1988] I.L.R.M. 610.

Madden v. The Irish Turf Club [1997] 2 I.R. 184.

Meskell v. C.I.E. [1973] I.R. 121.

Murphy v. Brentwood D.C. [1991] A.C. 398; [1990] 3 W.L.R. 414; [1990] 2 All E.R. 908.

Nelles v. Ontario 60 D.L.R. (Fourth) 609.

O'Brien v. Keogh [1972] I.R. 144.

Rondel v. Worsley [1969] (1) A.C. 191; [1967] 3 W.L.R. 1666; [1967] 3 All E.R. 993.

Ryan v. Ireland [1989] I.R. 177; [1989] I.L.R.M. 544.

Siney v. Dublin Corporation [1980] I.R. 400.

Sunderland v. McGreavey [1987] I.R. 372 (H.C.); [1990] I.L.R.M. 658 (S.C.).

Sweeney v. Duggan [1991] 2 I.R. 274.

Ward v. McMaster [1988] I.R. 337.

Walsh v. Ireland (Unreported, Supreme Court, 30th November, 1994).

Negligence - Duty of care - Proximity - Attorney General - Extradition - Delay - Shock and mental distress of victim of sexual offences aggravated by delay in extraditing perpetrator - Whether Attorney General owing common law duty of care to victim in exercise of statutory function to consider and speedily process extradition requests - Factors to be considered in determining existence and scope of duty of care - Whether sufficient relationship of proximity between victim and Attorney General - Whether Attorney General immune from action in negligence on grounds of public policy - Extradition Act, 1965 (No. 17) s. 43, 44A and 44B - Extradition (Amendment) Act 1987 (No. 25), s. 2.

Constitution - Personal rights - Right to bodily integrity - Breach - Limitation - Plaintiff the victim of sexual offences - Whether State owing victim a constitutional duty arising under provisions of Extradition Acts not to infringe her right to bodily integrity - Whether such duty involving obligation to consider and speedily process extradition request - Whether considerations of common good justified deprivation of claim for damages for breach of right to bodily integrity - Whether separate cause of action for damages for breach of a constitutional right - Whether exercise and enjoyment of personal rights limited by exigencies of common good - Constitution of Ireland, 1937, Article 40, s. 2.

Constitution - Personal Rights - Right to bodily integrity - Whether discrete cause of action for damages for infringement of a constitutional right already protected by common or statute law - Whether plaintiff's right to bodily integrity already adequately protected by common and statute law - Whether State's duty to protect plaintiff's right to bodily integrity discharged by existing legal provisions - Constitution of Ireland, 1937, Article 40, s. 3.

Preliminary issue.

The facts have been summarised in the headnote, and are set out in the judgment of Costello J., infra.

By plenary summons dated the 1st June, 1995, the plaintiff instituted proceedings claiming, inter alia, damages for personal injuries, including nervous shock and mental distress, loss and damage suffered by her, by reason of negligence, breach of duty, breach of statutory duty and breach of her constitutional rights on the part of the defendants. On the 11th November, 1995, the High Court (Johnson J.) directed the trial of a preliminary issue in terms which are fully set out in the judgment of Costello J., infra.

The preliminary issue was tried by the High Court (Costello J.) on the 27th and 28th February, 1997.

Section 43 of the Extradition Act, 1965 provides for the endorsement of the Commissioner of An Garda Síochána:—

"(1) Where—

• (a) a warrant has been issued by a judicial authority in a place in relation to which this Part applies for the arrest of a person accused or convicted of an offence under the law of that place, being an indictable offence or an offence punishable on summary conviction by imprisonment for a maximum period of at least six months, and

• (b) on production of the warrant to the Commissioner of the Garda Síochána it appears to the Commissioner that the person named or described therein may be found in the State, the Commissioner shall, subject to the provisions of this Part, endorse the warrant for execution".

By section 44B of the Extradition Act, 1965, as inserted by s. 2 of the Extradition (Amendment) Act, 1987, the Attorney General shall direct the Commissioner at An Garda Síochána not to endorse an extradition warrant:—

". . . unless the Attorney General, having considered such information as he deems appropriate, is of opinion that—

• (a) there is a clear intention to prosecute, or, as the case may be, to continue the prosecution of, the person named or described in the warrant concerned for the offence specified therein in a place in relation to which this Part applies,

and

• (b) such intention is founded on the existence of sufficient evidence."

The plaintiff was a victim of sexual offences committed in Northern Ireland by B.S. In 1993, when B.S. was residing in the State, the Attorney General of England, Wales and Northern Ireland sought his extradition for those and other offences. Before the Attorney General had given any direction regarding the endorsement of the warrant, the Attorney General's office was informed that B.S. intended to return voluntarily to Northern Ireland to stand trail for the charges referred to in the warrants, which, in 1994, he did, and was convicted of charges of sexual abuse, inter alia those in which the plaintiff was the victim. The extradition warrants were returned, unendorsed, in January, 1995.

The plaintiff instituted proceedings claiming that the Attorney General owed her a duty of care and/or a constitutional obligation to consider and speedily process the extradition requests, in order to ensure that B.S. was quickly brought to justice. She claimed that in breach of that duty of care and/or constitutional obligation, the Attorney General wrongfully and without lawful excuse failed, neglected and refused to endorse the said warrants for execution within the State, that a similar statutory duty was imposed on the Attorney General by the provisions of the Extradition Acts 1965 and 1987 and that, as a result of those breaches of duty, breaches of constitutional obligation and duty and breach of statutory duty and as a foreseeable consequence of the wrongful acts and omissions of the Attorney General, she suffered shock, distress, loss and damage.

The High Court (Johnson J.) directed the trial of a preliminary issue as to whether the defendants owed the plaintiff a duty of care at common law or under the Constitution.

Held by Costello P., in dismissing the plaintiff's claim, 1, that the test to be applied in considering whether, in the exercise of his statutory function, the Attorney General owed a duty of care at common law to the plaintiff was:—

• (a) whether there was a relationship of proximity or neighbourhood between the Attorney General and the plaintiff and

• (b) if so, whether the relationship was such that, in the reasonable contemplation of the Attorney General, carelessness on his part would be likely to cause damage to the plaintiff and

• (c) if these questions were answered in the affirmative, were there any considerations which ought to negative, reduce or limit the scope of the common law duty of the Attorney General.

Ward v. McMaster [1988] I.R. 337 applied; Anns v. Merton London Borough[1978] A.C. 728 followed; Murphy v. Brentwood D.C.[1991] A.C. 398 distinguished.

2. That where the court is required to consider whether a duty of care at common law arises in the exercise of statutory duties, powers, or functions, the issue is largely determined by the scope and nature of the relevant statutory provisions.

Ward v. McMaster [1988] I.R. 337 applied. Anns v. Merton London Borough[1978] A.C. 728; Sunderland v. McGreavey[1987] I.R. 372 (H.C.) [1990] I.L.R.M. 658 (S.C.); Convery v. Dublin County Council[1996] 3 I.R. 153; Madden v. The Irish Turf Club[1997] 2 I.R. 184; McMahon v. Ireland [1988] I.L.R.M. 610 and John C. Doherty Timber Ltd. v. Drogheda Harbour Commissioners[1993] 1 I.R. 315 considered.

3. That the Act of 1965 (as amended by the Act of 1987), did not impose a statutory duty on the Attorney General towards the victims of crimes referred to in the warrants which he was required to consider, but rather a statutory function under s. 44B of the Act of 1965 to decide whether to give a direction to the Commissioner under s. 44A of the Act of 1965. His function was a professional one, which the Oireachtas required him to perform as part of the extradition process, and in performing that function the circumstances of the victim were in no way relevant.

4. That since there was no relationship between the Attorney General and the plaintiff, the Extradition Acts imposed no duty...