Ann Osbourne (plaintiff) v Minister for Justice and Others (defendants). Tort - Personal Injuries - Breach of constitutional rights - Validity of search warrant - Technical defect in warrant - Warrant bona fide sought and granted - Consequences in tort action of invalid warrant - section 42(1),Larceny Act, 1916
The High Court (Mr Justice Clarke); judgment delivered April 13th, 2006.
A claim in damages (whether for breach of constitutional rights or in tort) cannot be brought in respect of actions taken on foot of a warrant which though apparently valid was technically infirm, but was not relied upon in circumstances which amounted to deliberate or conscious violation of the rights concerned.
The High Court so held in dismissing the plaintiff's claim.
Richard Mc Donnell, SC, with James Phillips, BL, for the plaintiff; Roderick O'Hanlon, SC, Michael Howard, SC, for the defendants.
Mr Justice Clarke said the case concerned an incident which took place on August 15th, 1995, when a number of members of An Garda Síochána were engaged in activities at Fitzgerald Park, Mounttown, Dun Laoghaire. While there was no doubt that an incident occurred on the occasion in question there was considerable controversy as to certain important aspects of the facts. Arising out of the incident the plaintiff claimed that she suffered significant personal injuries and claims damages (including aggravated damages) for such injuries and for what she claimed were breaches of her constitutional rights.
Mr Justice Clarke said that some aspects of what occurred were uncontroversial. The gardaí had an interest in a person who lived in an apartment at Fitzgerald Park. This individual, Mr Merrigan, was, at the relevant time, suspected of having committed a burglary at a house in Woodland Park which is a short distance from Fitzgerald Park. A watch and a sum of money had been stolen from the house concerned. The description of one of those allegedly involved matched that of Robert Merrigan. On foot of that information an application was made on August 14th, 1995, to a peace commissioner for a number of search warrants. Some controversy surrounded those search warrants. In any event, relying upon the search warrants, a number of gardaí attended at Fitzgerald Park on the evening of August 15th, for the purposes of executing those search warrants. The warrants included one in respect of No 44 Fitzgerald Park at which a cousin of Robert Merrigan resided. A second warrant related to No 45 Fitzgerald Park which is the property in which the plaintiff lived. Both No 44 and No 45 are two-storey dwellings within an apartment block. The front access is from a first-floor external corridor. In both cases there is a rear balcony and it seems that it is relatively easy to go from one balcony to the next. There was thus relatively easy access at the rear from No 44 to No 45. Mr Justice Clarke said that it did not appear to be in dispute that the gardaí attempted, initially, to gain access to No 44. It would seem on the evidence that Robert Merrigan was present at the relevant time in No 44, that the gardaí sought to execute the warrant in respect of that premises, that they were initially refused access and were preparing to break in the door to No 44 when that door was opened allowing the gardaí to enter. It would also appear that just as the gardaí were entering Robert Merrigan left through the rear balcony and appeared to enter into the neighbouring dwelling at No 45. In those circumstances it would appear that the garda in charge (then Sergeant now Inspector Hogan) went back to his car to obtain the warrant in respect of No 45 which he had left in the car. While Inspector Hogan was engaged in that process two gardaí would appear to have been left in No 44 for the purposes of apprehending Mr Merrigan in the event that he should come back into that property. A number of other gardaí (probably three) remained in the corridor outside of both Nos 44 and 45. When Inspector Hogan returned with the warrant in respect of No 45 it appeared that Robert Merrigan was present in No 45 when the gardaí knocked at the door. Robert Merrigan asked the gardaí whether they had a warrant and was informed that that was indeed the case. Notwithstanding this Robert Merrigan did not open the door and the gardaí proceeded to break in. Thereafter an attempt was made to arrest Robert Merrigan within No 45 with a struggle ensuing between two gardaí and Mr Merrigan. It was also common case that the mother of Robert Merrigan, Frances Merrigan, arrived as the gardaí were attempting to subdue Mr Merrigan. It was common case that after a period Mr Merrigan was subdued and was taken from the property under arrest by a number of gardaí.
In addition to the fact that there were issues about the search warrant used on the occasion in question, there were number of factual disputes between the parties. The plaintiff stated that she was sitting in a common area of the apartments with a number of friends drinking tea when a significant force of gardaí arrived. After a period she was informed that the gardaí were kicking her door. When she got to her apartment "the door was on the ground". When she went into the apartment she found Robert Merrigan on a couch in the living room with his mother lying over him and two "very large policemen beating him with batons". She asked the gardaí to leave but was told to "f--- off". She was thrown against the mantelpiece in her living room and in the course of being manhandled out of the premises she "got a kick in the leg" and one the gardaí stood on her foot. Two other witnesses called on behalf of the plaintiff corroborated in part her account though in respect of one of those witnesses, Frances Merrigan, there was a significant difference of recollection as to whether she (Mrs Merrigan) or the plaintiff first arrived at the apartment.
The Garda account was quite different. None of the gardaí present indicated that they had any recollection of seeing the plaintiff. It would appear to be common case that a crowd gathered in the corridor near the plaintiff's apartment as the incident developed. The precise size of that crowd and the extent to which it was, as asserted in the Garda evidence, hostile to the Garda operation was a matter of some controversy. It was accepted on behalf of the defendants that the plaintiff may well have been present outside her apartment. In addition, while the Garda evidence was to the effect that the crowd was significantly hostile to their presence, there was no evidence which suggested hostility on the part of the plaintiff. Furthermore the Garda evidence was to the effect that no one was permitted to enter the apartment after the gardaí had broken down the door, with the exception of Francis Merrigan whom, it was said, was permitted to enter with a view to her speaking to her son for the purposes of attempting to calm him down. On the basis of the Garda evidence, therefore, it was contended that the plaintiff never entered her apartment on the occasion in question. While there was no direct evidence from the gardaí present as to any involvement on the part of the plaintiff, it was accepted that it might have been possible that she received an injury in the course of the scuffles which the gardaí contend occurred as Mr Merrigan was being led from the apartment under arrest.
Mr Justice Clarke then outlined the issues which arose, as follows - (a) the validity of the warrant under which the gardaí forcibly entered the plaintiff's apartment; (b) the consequences, for the purposes of this action, of such a warrant being invalid (if that should be the case); (c) whether, as a matter of fact, the plaintiff was injured, as she contends, while being physically removed from her apartment; (d) whether, if it should be found to be the case that she was so injured, same occurred in a manner giving rise to a claim in damages as against the gardaí concerned;and (e) if necessary damages.
Mr Justice Clarke said that each of the relevant warrants was issued under s. 42(1) of the 1916 Act. The section provides as follows:
"If it is made to appear by information on oath before a justice of the peace that there is reasonable cause to believe that any person has in his custody or possession or on his premises any property whatsoever with respect to which any offence against this act has been committed, the justice may grant a warrant to search for and cease same."
Mr Justice Clarke stated that Sergeant Hogan had in his possession four warrants relating to different premises in the Fitzgerald Park area and in particular warrants in respect of both Nos 44 and 45. His stated basis, as given in evidence, for seeking warrants in respect of each of the premises was that it was his experience that Robert Merrigan attempted to move from one premises to another whenever he found himself being sought by the gardaí. Sergeant Hogan indicated that it was his belief that the property was likely to be found on Robert Merrigan. He had a belief that the stolen property would be found wherever Robert Merrigan was found. His stated basis for believing that it was possible that the property would be found at No 44 was the fact that a cousin of Robert Merrigan lived there and that he (Robert Merrigan) was known to frequent that property. His stated basis for a belief that the property might be found at No 45 was the modus operandi of Robert Merrigan, coupled with the easy access from the balcony at the back of No 44 to the balcony at the back of No 45 as a means of escape. In those circumstances the reason why then Sergeant Hogan indicated that he believed that stolen property might be found at No 45 had nothing to do with any insinuation in respect of the character of the plaintiff but concerned the possibility that Mr Merrigan might go from No 44 to No 45 carrying the stolen property with him. While now Inspector Hogan's evidence was challenged in that regard Mr Justice Clarke said he was satisfied that the inspector was of the belief which he stated and that he had reasonable grounds for being of that belief.
The Peace Commissioner also gave evidence that then Sergeant Hogan had supplied additional information on oath to him, on applying for the warrants concerned, which satisfied him of the link between the stolen watch and the premises at 44 or 45 Fitzgerald Park. Mr Justice Clarke was satisfied on the evidence that then Sergeant Hogan gave an explanation to the peace commissioner in terms similar to that which he gave to the court. The court was therefore satisfied that the peace commissioner issued each of the relevant search warrants on the basis of an account given by then Sergeant Hogan, both in writing and verbally, but in both cases on oath and corresponding, in general terms, with the account referred to above. Having concluded that then Sergeant Hogan genuinely had the beliefs which formed part of that account and had a reasonable basis for those beliefs Mr Justice Clarke said he must conclude that the warrants were bona fide sought and bona fide granted by the peace commissioner.
Mr Justice Clarke said that there was, however, a further technical issue concerning the validity of the warrants. Both s.42 itself, and the standard form of information used, refer, in the present tense, to the individual concerned having in his custody the relevant property at a specified premises. Mr Justice Clarke said that in those circumstances it does not seem to be the case that the section permitted the issuing of a warrant in circumstances where the most that could be said was that there was a possibility that the premises concerned might be used as an escape route. Such a possibility does not seem to be consistent with the clear wording of the statute. In those circumstances Mr Justice Clarke said he not satisfied that the warrant was valid. Mr Justice Clarke said that the warrant was also defective in a technical sense in that the Peace Commissioner failed to cross out the alternative description of, "District Judge" as a potential author of the warrant and it was not, therefore, clear as to the capacity in which the person issuing the warrant had acted. In those circumstances Mr Justice Clarke said he was not satisfied that the error in question invalidated the warrants. Even if the court were wrong in that view, there was no basis on the evidence for any reason to believe that any of the gardaí involved in the execution of the warrant were aware of any such technical deficiency and their actions could not, on that ground, be described as being knowingly wrongful.
The court then turned to the question of the consequences of the invalidity of the warrant in the light of the finding that it was bona fide sought and granted. In the People (A.G.) v. O'Brien IR 142, a search warrant for a premises was deemed to be invalid because an error was made in filling in the address of the house to be searched on foot of the warrant. The case concerned the admissibility of evidence at a criminal trial, where the evidence was obtained on foot of the execution of the warrant. At p. 162, Kingsmill Moore J. stated the following:
"Walsh J., in the judgment which he is about to deliver, is of the opinion that where evidence has been obtained by the State or its agents as a result of a deliberate and conscious violation of the Constitution (as opposed to the common law) rights of an accused person it should be excluded save where there are "extraordinary excusing circumstances", and mentions as such circumstances the need to prevent an imminent destruction of vital evidence or rescue of a victim in peril, and the seizure of evidence obtained in the course of and incidental to a lawful arrest even though the premises on which an arrest has been made without a search warrant."
The passage from the judgment of Walsh J. that Kingsmill Moore J. was referring to reads as follows:
"In the present case it is abundantly clear from the evidence that it was through an error that the wrong address appeared on the search warrant and that the searching officers were unaware of the error. There was no deliberate or conscious violation of the right of the appellants against arbitrary intrusion by the Garda officers. The evidence obtained by reason of this search is not inadmissible on the constitutional ground."
Mr Justice Clarke said that O'Brien had the merit of being a case dealing specifically with a search warrant. While it was concerned with the admissibility of evidence there was no reason not to apply the overriding principle to the question of the consideration of any other consequences of reliance upon an invalid warrant. Mr Justice Clarke said he was therefore satisfied that no claim in damages (whether for breach of constitutional rights or in tort) could be brought in respect of actions taken on foot of a warrant which though apparently valid was technically infirm, but was not relied upon in circumstances which amounted to, as Walsh J. put it in O'Brien, a "deliberate or conscious violation" of the rights concerned. There could, of course, be a deliberate or conscious violation of rights where a false basis was put forward for obtaining the warrant or where a basis was put forward which, while correct on the facts, was one which the person seeking the warrant knew did not justify the grant of the warrant. Furthermore it was implicit from the judgments in O'Brien that reliance on a warrant which is subject to a technical defect but where that defect was known, prior to the execution of the warrant, by those involved in its execution might also amount to a deliberate or conscious violation of rights. Mr Justice Clarke stated that such an overall view of the entitlement to damages arising from the consequences of the execution of a warrant which was technically defective was, in his view, consistent with the jurisprudence of the courts in the analogous area of breach of statutory duty by officials or others charged with carrying out public functions. In such circumstances it was now well settled that damages do not arise in the absence of adeliberate and knowing breach of statutory obligation.
Applying those principles to the facts of this case Mr Justice Clarke was not satisfied that it could be said that there was any deliberate or conscious violation of the rights of the plaintiff. For the reasons analysed above the court was satisfied that Sergeant Hogan put forward as a basis for seeking the warrants a reasonable belief as to the circumstances in which stolen property might be found on No 45 Fitzgerald Park. The court was not satisfied that he was aware that there might be a technical difficulty with using such a basis as the means for obtaining a warrant in respect of a potential escape route. The court was equally satisfied that there was no basis for suggesting that he was aware that the warrant might be subject to a defect on that basis. In all those circumstances the court was not satisfied that any defect in the warrant is such that enables the plaintiff, on that ground alone, to recover damages.
Mr Justice Clarke then turned to the circumstances surrounding the execution of the warrant. Mr Justice Clarke said it followed from his findings in respect of the warrant that those circumstances need to be examined on the basis that no claim can be brought which stemmed from any invalidity in the warrant itself. Those circumstances needed to be examined, therefore, on the basis that the gardaí had in their possession an apparently valid warrant in respect of No 45 Fitzgerald Park and that any infirmity in respect of that warrant was not a matter which those executing it were aware of at the relevant time. Mr Justice Clarke stated it was unfortunate that such a lengthy period of time had elapsed since the events giving rise to these proceedings. It was undoubtedly the case that in the ten and a half years that elapsed between the events in question and the giving of evidence before the court, memories had faded. In assessing the evidence, Mr Justice Clarke said he found the plaintiff to be a witness whom, in his view, gave an account of the events as she now believed them to have occurred. Nothing that the court had to say should be taken as implying that she, in any way, sought to mislead the court. However, there were a significant number of matters in the accounts given both by her, and certain of her witnesses, at various stages throughout the process, which must cast doubt on whether the account now given to the court actually reflects what occurred on the occasion in question. In a reply to particulars dated June 4th, 2003, (in response to a request as to the basis upon which it was contended that the gardaí concerned were actuated by malice) the following was stated:
"The gardaí proceeded to kick and smash in her hall door, notwithstanding the fact that she was standing beside them holding the key to same and requesting them desist so that she could open the door for them."
In evidence at the trial it was clear that the gardaí had entered into the plaintiff's premises quite some period before she arrived at the door. There was no evidence which substantiated that complaint as made in the reply to particulars. Nor was any adequate explanation given as to how such an assertion could have been made if it were not on the basis of clear instructions from the plaintiff to that effect. Secondly, there was a clear conflict of evidence between the account given by the plaintiff and that given by Ms Merrigan. It appeared to be common case that Ms Merrigan was alerted to the fact that her son was being pursued by the gardaí at No 44/45 Fitzgerald Park soon after the incident began to develop. It was equally common case that she went to No 45 and was permitted to enter by a garda who was hopeful that she might exercise a calming influence on her son. On her account, however, the plaintiff was already in the property before she arrived. However, both the plaintiff and Mr Michael Kenny (who gave evidence on her behalf) stated that the plaintiff arrived after Ms Merrigan had gone in. Indeed it was a central feature of the plaintiff's evidence that, when she went into her dwelling, the first thing she saw was Ms Merrigan attempting to protect her son from the two garda in question. Mr Justice Clarke was also satisfied, on the consistent garda evidence, that a crowd, at least a significant number of whom were hostile to the Garda operation, gathered outside No 45 while the incident was occurring inside. Physical abuse was used against the gardaí as they left with Mr Merrigan under arrest. In those circumstances Mr Justice Clarke also found Mr Kenny's account unsatisfactory by virtue of his denial of any such hostility or physical action on the part of the crowd against the gardaí.
In all the circumstances Mr Justice Clarke said he was not satisfied that he could place reliance upon the account of the plaintiff and her witnesses where same is divergent from the account given by the gardaí. The court was prepared to accept that the plaintiff now believes that she suffered her injuries in the manner which she described in evidence. The court was not satisfied that that is in fact what occurred.
Mr Justice Clarke said that there was little doubt on the evidence that the plaintiff was of a nervous disposition. There could be little doubt, therefore, that the whole event was of a most traumatic nature for her. In those circumstances Mr Justice Clarke was satisfied that she had come to believe that she suffered her injuries while being manhandled by gardaí within her dwelling. Mr Justice Clarke was satisfied that as a matter of probability that what in fact occurred was that she was outside of her property attempting to gain access and came to be injured in the course of the hostile physical action being taken by other persons against the gardaí as they attempted to leave.
Mr Justice Clarke said that in those circumstances it did not seem to him that the manner in which the warrant was executed could give rise to any claim in damages on the part of the plaintiff. Given that there was a conclusion that the presence of a technical defect in the circumstances leading to the making of the warrant did not, either, give rise to a claim in damages, it seemed to Mr Justice Clarke that the claim must fail.
Accordingly, Mr Justice Clarke dismissed the plaintiff's claim.
Solicitors: Patrick J. Morrissey & Co. (Dun Laoghaire) for the plaintiff; M.A. Buckley & Co. (Dublin) for the defendant.
P.J.Breen, barrister
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