Garda error does not entitle alleged rape victim to damages

THE COLLAPSE of a rape trial because of a “basic error” by a Garda who arrested the accused man under an abolished power of arrest does not entitle the alleged victim to damages against the Garda Commissioner and the State, the High Court has ruled.

The president of the High Court, Mr Justice Nicholas Kearns, said yesterday that while he had sympathy for the woman involved, he regretted he must conclude she was not entitled to succeed in her action for damages.

The woman “understandably felt extremely aggrieved that, having been subjected to rape and having undergone the ordeal of a trial in which she gave evidence, the prosecution case collapsed as a result of such a basic error on the part of the arresting garda”, he said.

However, he was satisfied no action arose for negligence in the absence of mala fides(bad faith) by the Garda. He was also satisfied a duty of care does not arise such as would create an entitlement to damages arising from how gardaí conduct an investigation.

In this case, it was “quite clear” there was no bad faith by the Garda and therefore no cause of action in negligence. Therefore, there could be no basis for creating a cause of action based on alleged infringement of constitutional rights.

No duty of care arises in respect of bona fide actions and decisions carried out by gardaí in the course of a criminal investigation and/or prosecution, the judge held.

Any other view would have “quite alarming consequences”, he said. Where, he asked, would the duty of care begin or end? Would the victim of a crime be the only person entitled to sue or would any such entitlement extend to immediate members of their family or witnesses?

The inhibiting nature of such a duty of care would also “effectively cripple” the capacity of the Garda, or any other police force, to carry out its duties effectively and speedily. It would be “unacceptable” that those charged with responsibility for the investigation and prosecution of crime should have to take legal advice “at every hand’s turn in respect of every step in the criminal process”.

The case arose after the collapse in 2003 of the rape trial at the Central Criminal Court. It emerged during the trial the accused man was arrested in July 1999 under the common law power of arrest for rape. However, at the time of the arrest, section 3 of the Criminal Law Act 1997 had abolished that power of arrest.

The man could have been arrested under section 4 of the Criminal Justice Act 1984 but the arresting Garda did not exercise that power. The trial judge ruled the man was held in illegal custody in breach of his constitutional right to liberty. He also ruled any evidence obtained during that unlawful detention, which included certain admissions made by the man, was inadmissible. In those circumstances, the prosecution case collapsed.

In May 2006, the woman brought her proceedings seeking damages for alleged negligence and breach of duty by the Garda and State in invoking a power of arrest that did not exist at the time of the purported arrest.

She claimed the State had failed to vindicate her constitutional right to bodily integrity and to ensure justice was achieved.

The defendants denied the claims and pleaded no liability arose in the absence of bad faith by the Garda, which arguments were upheld yesterday by Mr Justice Kearns. They also argued the woman’s case was brought outside statutory time limits but that claim was rejected.