Bail crimes and gardaí’s duty of care

Mr Justice Kearns considered the case law before his recent ruling in case taken by husband of Sylvia Roche Kelly, who was murdered by man out on bail

Crimes are sometimes committed by  people out on bail for other offences. Photograph:  Patrick Browne

Crimes are sometimes committed by people out on bail for other offences. Photograph: Patrick Browne

 

A recent judgment of the President of the High Court, Mr Justice Nicholas Kearns in Lorcan Roche Kelly v the Commissioner of An Garda Síochána, the Minister for Justice, Equality and Law Reform and the Attorney General reviewed the liability for the commissioner and minister where crimes are committed by a person on bail for other offences.

The plaintiff was the husband of Sylvia Roche Kelly who was murdered by Gerry McGrath on December 8th, 2007. The plaintiff claimed the failure and inaction of the defendants, in the context of a bail application, to inform the court of other offences in which McGrath had been charged, caused or contributed to the fact he was out on bail when he should not have been.

Mr Justice Nicholas Kearns considered the case law to date on such matters.

In Lockwood v Ireland and Others [2011], the court dismissed a claim made against the Garda by a rape claimant after a rape trial collapsed on account of a mistake in the arrest of the accused. The court took the view there was no duty of care such as would create an entitlement to damages arising from the manner in which the Garda conducted its investigation and the claimant would have to establish mala fides on the part of the Garda in order to maintain a claim for damages.

In LM v the Commissioner of An Garda Síochána and Others [2011], Mr Justice John Hedigan, in the High Court, dismissed an action by a plaintiff who complained gardaí failed to properly investigate and prosecute a rape allegation. The complaint was made in 1990 when the plaintiff was a child and no steps were taken between December 1990 and September 1996, until the English Child Protection Agency contacted gardaí.

Quashed conviction

“The key issue in this case is whether it would be contrary to public policy to impose a duty of care on the gardaí,” Mr Justice Hedigan held. “The imposition of liability might lead to the investigated operations of the police being exercised in the defensive frame of mind … The result would be a significant diversion of policy manpower and attention from their most important function, that of the suppression of crime.”

Mr Justice Hedigan was asked a similar question in AG v JK and Others [2011]. The plaintiff’s case was that gardaí had asked her to provide accommodation for the husband of her murdered friend when he could no longer live in his house, as it was a murder scene. The plaintiff alleged the man, who had a previous rape conviction, later raped her. The judge ruled that, “on the basis of the now well-established law outlined … no duty of care arises in the circumstances herein”.

The president, in the case under discussion, set out the arguments as considered in Smyth and Another v the Commissioner of An Garda Síochána and Others. The High Court had refused to dismiss the plaintiff’s claims, at interlocutory stage, in circumstances where such a matter might have been expected to be dismissed on public policy grounds.

The principle enunciated did not confer a blanket immunity in all circumstances but rather a principle which admitted exceptions in special circumstances. The plaintiff argued the public policy reasons which might be in favour of exclusion were outweighed by the public policy in favour of applying ordinary liability principles because the entire bail system attempts to avoid granting bail to a person who may then commit a serious offence.

The plaintiff further advanced that article 2(1) of the European Convention on Human Rights imposes upon the State an obligation to protect the life of individuals against the acts of third parties which may be taken as including victims identifiable in advance as potential targets of lethal acts and also those not so identifiable. In Maiorano v Italy, the Italian state was found to be responsible in respect of a double murder committed by an offender out on day release. Whilst it had not been possible to identify in advance the victims as potential victims, Article 2 required the protection of a society against the potential danger from a person convicted of a violent crime. The court emphasised article 2 enjoined the state not only to refrain from the intentional and unlawful taking of life, but also the appropriate steps to safeguard the lives of those within its jurisdiction.

Freed under day release

He dismissed the plaintiff’s claim, not on the basis of some supposed “blanket immunity” but because long established common law principles, whereby a duty of care is deemed to arise, were not present on the facts of this case.

Ben Mannering is a solicitor/claims manager with the State Claims Agency. The views in this article are personal and do not reflect the views of the agency

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