M -v- Commissioner of An Garda Siochána Ors
Neutral citation (2011) IEHC 14
High Court
Judgment was delivered on January 20th, 2011, by Mr Justice John Hedigan.
Judgment
In a claim for damages for negligence taken by a child rape victim against An Garda Siochána, arising out of its failure to prosecute the alleged perpetrator, the High Court found that no duty of care existed on the part of the Garda in respect of its investigatory or prosecutorial functions.
Background
The plaintiff is a woman who made a formal complaint of rape in 1990, when she was 12 years old. Her complaint was validated by St Louise’s unit at Crumlin Hospital.
No further steps were taken until September 1996 when the English Child Protection Agency contacted An Garda Siochána. In April 1997, the English police interviewed the alleged perpetrator, who was extradited back to Ireland in February 1998. He was tried and convicted of rape, unlawful carnal knowledge, incest and indecent assault in October 1998 and received a nine-year sentence.
In October 2001, his conviction was quashed and a retrial ordered. He successfully challenged the retrial on the grounds of prosecutorial delay, where it emerged that records were mislaid and there was no system to track and date records. It also emerged that two officers within the investigating and prosecutorial service had died between 1990 and 1996.
The plaintiff’s mental condition, which had been good in 1999, notably deteriorated with the collapse of the retrial and she was diagnosed as suffering from post-traumatic stress disorder.
She contended that the failure to prosecute constituted negligence and that her constitutional right to bodily integrity and privacy had been breached, as had her rights under the European Convention on Human Rights. She sought declarations and damages and discovery from the defendants to establish the full factual circumstances surrounding the delay in bringing the prosecution.
The president of the High Court asked that three questions be answered as preliminary issues: did the defendants owe the plaintiff a duty of care; if so, is a breach actionable; is the plaintiffs case statute barred under the Statute of Limitations Act 1957?
The defendants argued that not only should the tests of “proximity” and “foreseeability” be used in considering whether a duty of care towards the plaintiff arose, but also considerations of public policy should arise with regard to the plaintiff. They argued that where a body is performing a function that is in the public interest, this may outweigh any duty of care to private individuals.
They drew attention to cases where similar issues had arisen, including W (HM) -v- Ireland, AG and Government of Ireland (1997), where the plaintiff claimed that she was owed a duty of care in the swift bringing to justice of paedophile priest Brendan Smith, when the warrants for his extradition were not endorsed. The court found there was not sufficient proximity between the plaintiff and the defendants, and that public policy would prevent any duty of care being imposed.
They argued that the duty of the Garda and the Director of Public Prosecutions in investigating crime and prosecuting cases is to the public at large and it was imperative that they retained their freedom of action, which would be hampered if a duty of care were imposed on them in relation to victims, contrary to the public interest.
The plaintiff argued that there were circumstances in which the negligent investigation and prosecution of crime can give rise to liability on the part of the State. It was argued that in circumstances where a 12-year-old girl was left in limbo for six years after a complaint of rape, that it was foreseeable it would cause her damage.
She also pointed out that in McFarlane, the State argued before the European Court of Human Rights that the domestic courts had no hesitation in granting damages for breaches of constitutional rights in cases involving delay, even if none had been calculated or granted so far. It was now arguing the contrary.
The courts had already recognised that the Garda owed a duty of care to accused persons and to third parties, so there was no reason in principle why a victim of crime should not find equal protection.
Decision
Mr Justice Hedigan said that he considered there was proximity in this case, in that gardaí did interact with the girl as a 12-year-old, and it was foreseeable that leaving her in limbo for six years after she made her complaint would cause her damage.
The key issue was whether it would be contrary to public policy to impose a duty of care on the gardaí. In W (HM), the High Court had found that it would be contrary to public policy to impose a duty of care on the authorities in relation to the non-extradition of Brendan Smith.
In the UK, the House of Lords had found that there was no general duty of care owed by the police to individual members of the public to identify and apprehend a criminal. This had been held to accord with the European Convention on Human Rights.
The McFarlane case was different in that in that case, the plaintiff was an accused person, and the State had not argued in Strasbourg that a victim could sue over delay in bringing a prosecution.
Mr Justice Hedigan also adopted the statement of the law made by the High Court president, Mr Justice Nicholas Kearns, in BL -v- Ireland, concerning the duty of care owed by the Garda to a rape victim where the trial collapsed, where he said that finding such a duty of care existed would have “alarming consequences”.
He said no duty of care existed in Irish law on the investigating and prosecuting authorities, as this would be contrary to public policy. That being so, the question of whether the case was statute barred was moot.
The full judgment is on courts.ie
Deirdre Murphy SC, Siobhan Phelan BL and Eilis Barry BL, instructed by James Mcguill Co, for the plaintiff; Feichín McDonagh SC and Brid O’Flaherty BL, instructed by the Chief State Solicitor, for the defendants