Walshe and another v Fennessy and Others

JudgeMr. Justice John L. Murray,Mr. Justice Geoghegan,Mr. Justice Kearns
Judgment Date28 July 2005
Neutral Citation[2005] IESC 51
Date28 July 2005
CourtSupreme Court
Docket Number[222/2004],[S.C. Nos.

Murray CJ.

Geoghegan J.

Kearns J.





Criminal law - Arrest - Legality of arrests - Whether bona fide suspicion of garda reasonable - Whether direction of superior officer to arresting garda to arrest in conjunction with other information in knowledge of arresting garda sufficient to create reasonable suspicion - Offences Against the State Act 1939, section 30.

Facts: section 30(1) of the Offences Against the State Act 1939 provides "a member of the gardai...may without warrant...arrest any person...whom he suspects of having committed...an offence under any section or subsection of this Act..." The plaintiffs had been arrested and charged with offences under section 30 of the Act of 1939. The High Court ruled that the arrests were unlawful on the grounds that the arresting officers did not have the requisite suspicion for the purposes of section 30 and damages for unlawful arrest were awarded against the State accordingly. The State defendants appealed the decision of the High Court on the grounds that the arresting officers relied for their suspicions, inter alia, on the information provided to them by their superior officer that the plaintiffs were purportedly members of an illegal organisation and had also seen an intelligence document containing that information themselves.

Held by the Court in allowing the appeal in respect of the first plaintiff and substituting a finding that the arrest of Garda Walshe was valid and dismissing the appeal in respect of the second plaintiff, that the suspicion of the arresting garda that an offence had been committed did not have to be proved in any particular manner and could be established by direct evidence or could be inferred from the circumstances but was always a fact which had to be established before an arrest under section 30 of the Act of 1939 could be regarded as lawful.

Such suspicion could be informed by a direction to arrest given by a superior officer. However, in order to form the requisite suspicion required by section 30, the arresting officer had to have some understanding of the underlying rationale or basis for the arrest.

Reporter: P.C.


JUDGMENT of Mr. Justice Kearns delivered the 28th day of July, 2005


This is an appeal brought by the appellants against the ruling of the High Court (Quirke J.) made on the 20th May, 2003, which determined that the arrest of the plaintiffs on the 27th September, 1991 and their subsequent detention was unlawful, and against the award of damages made thereafter by a jury when the 1st named plaintiff was awarded damages in the sum of Eur175,000 and the 2nd named plaintiff was awarded damages in the sum of Eur100,000 in respect of their claims. The State appellants are also appealing from a ruling of the learned High Court judge delivered on the 12th November, 2003, which held that the first named defendant/respondent, Anthony Fennessy, was entitled to recover his own costs of the proceedings from the State appellants. By consent of all the parties, however, the hearing of the appeal in respect of the last mentioned issue has been deferred pending resolution of the main appeal in respect of Garda Walshe's case, and the associated proceedings brought by Ms. Kay Bedford, both of which claims were heard and determined at the same time.


Both Anselm Walshe and Kay Bedford were arrested in Limerick on the evening of 27th September, 1991, under s.30 of the Offences against the State Act, 1939. Anselm Walshe was at the time a plain clothes garda officer stationed in Limerick who had 33 years service in the Garda Síochána. Kay Bedford was a person who was on friendly terms with Garda Walshe, but was not herself a member of the Garda Síochána. Following the arrest, which in the case of Garda Walshe took place at Henry Street Garda Station, and in the case of Ms. Bedford at her home, both were brought to Dublin where they were detained in custody at the Bridewell Garda Station and questioned until they were released on the morning of the 29th September, 1991, after approximately 40 hours detention.


The arrests took place as part of an investigation into a matter of major concern to the garda authorities at the time, namely, the infiltration of the ranks of the gardaí in Limerick by the I.R.A. This had resulted in the leaking of information on garda activities in Limerick from within garda ranks to the I.R.A. Both Garda Walshe and Ms. Bedford were arrested on suspicion of membership of the I.R.A. After questioning in the Bridewell Garda Station in Dublin however both were released without charge. Both the State appellants and Detective Inspector Fennessy, who was the officer appointed by the Garda Commissioner to conduct the inquiry into the possible existence of moles or I.R.A. members or sympathisers within the Garda Síochána in Limerick, now accept that neither Garda Walshe or Ms. Bedford were members of the I.R.A. However, it is contended on behalf of the State appellants that the arrests and subsequent detention of both Garda Walshe and Ms. Bedford were not unlawful as the arresting officer in each case had a bona fide and reasonable suspicion at the time of arrest that each was a member of an illegal organisation, namely the I.R.A.


The legality of the arrests of Garda Walshe and Ms. Bedford was the subject of a ruling in the course of the trial by the trial judge on 20th May, 2003. He ruled that the arrests were unlawful on the grounds that the members of An Garda Síochána who arrested Garda Walshe and Ms. Bedford, being Detective Inspector Fennessy and Sergeant O'Shea respectively, did not have the requisite suspicion for the


purposes of s.30 of the 1939 Act. Having regard to the fact that the trial judge so ruled, the only issue to be then considered by the jury in both cases was the quantum of damages and the trial judge directed the jury on that basis. There is no complaint of any sort made about the charge given to the jury by the learned trial judge. During the course of the proceedings and prior to trial, Detective Inspector Fennessy sought his own legal representation separate from the State appellants and engaged his own solicitors and counsel for the trial. While the State appellants have at all times accepted that Detective Inspector Fennessy was entitled to an indemnity for the award of damages and costs made in favour of the plaintiffs, the State appellants did not accept that they had any liability to discharge Detective Inspector Fennessy's own costs. This issue was the subject of a separate hearing before the trial judge on 12th November, 2003, at which neither plaintiff was involved or represented. Following submissions, the trial judge ordered that the State appellants pay Detective Inspector Fennessy's costs in both cases. In notices of appeal date 21st May, 2004, the State appellants have appealed the ruling of the trial judge which found the arrests of Garda Walshe and Ms. Bedford to be unlawful, the awards of general damages of and Eur175,000 and Eur100,000 in favour of Garda Walshe and Ms. Bedford respectively and the order of the trial judge granting Detective Inspector Fennessy his costs against the State appellants. It is submitted that the trial judge erred in ruling as he did in relation to the arrests and ought to have ruled that the arrests were lawful. It is further submitted that the awards were so excessive and disproportionate having regard to all the circumstances that no jury could reasonably have awarded such damages. It is further submitted that the trial judge erred in awarding Detective Inspector Fennessy his costs against the State appellants and ought to have required Detective Inspector Fennessy to bear his own costs in circumstances where the State appellants were prepared to continue providing representation for Detective Inspector Fennessy at the trial.


Anselm (otherwise 'Joe') Walshe was born in 1942 and joined the Garda Síochána in 1965. After various postings, he ended up in Limerick in 1974 and was transferred to the Plain Clothes Division of the Garda Síochána in Limerick in 1976. He was involved in the investigation of serious crime and in due course became a full-time scene of crimes examiner in Limerick. He was also very active in the GAA.


In May 1991, a number of months before his arrest, he was involved in an incident when he fell asleep in a car outside a pub in Newtown Perry. This pub was owned by a man named Conway who was believed to have I.R.A sympathies. Some people drove him home on the night in question then took his car and crashed it. It appears that as a result of this incident, a decision was made to revert Garda Walshe to uniform duties, but no action had been taken on foot of this decision at the time of his arrest in September, 1991.


Because it also arose in the course of his subsequent detention, it is perhaps appropriate also to record that he had a cousin, Sarah Duggan, who was involved in one of the republican movements and whose boyfriend was believed to be a member of the I.R.A. Garda Walshe's ex-directory telephone number was found in Sarah Duggan's flat in the course of inquiries undertaken to ascertain the source of the


leaks within the Limerick Gardaí ranks. However, it is common case that Garda Walshe had reported this association some considerable time prior to his arrest to his immediate superior, Detective Inspector Gerry O'Sullivan. Garda Walshe gave evidence that he tried to persuade Sarah Duggan not to become involved in any republican activity. His friendship with Kay Bedford arose through another friendship and also because Ms. Bedford lived beside the...

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