No duty of care owed in rape case, says judge

A WOMAN whose complaint of rape made at the age of 12 was not acted upon by gardaí and prosecuting authorities for the next six years is not entitled to sue the Garda and State for damages, the High Court has ruled.

The judge ruled gardaí and the prosecutors do not have a duty of care in such circumstances.

The woman’s alleged rapist won his appeal against a 1998 conviction for rape and incest some years ago and later won a High Court order halting a retrial on grounds of prosecutorial delay.

In his judgment yesterday on a preliminary issue as to whether a duty of care arose in the woman’s case against the Garda and State, Mr Justice John Hedigan found gardaí and prosecuting authorities owe no duty of care under Irish law to individuals in carrying out their functions in the investigations and prosecution of crime.

That was because it would be contrary to the public interest to impose such a duty by reason of the inhibitory effect on the proper exercise of those functions, he said. “It is in the public interest that those bodies should perform their functions without the fear or threat of action against them by individuals.”

That view of the law was entirely consistent with the jurisprudence of the European Court of Human Rights, he added.

The judge stressed that neither the Garda nor State authorities are immune from actions for damages arising from ordinary principles of negligence. The absence of duty of care relates only to their investigatory and prosecutorial functions, he said.

Outlining the background, the judge noted the woman made a formal complaint of rape to gardaí in May 1990 when a formal statement was also taken from her.

Her mother provided a statement some months later and the woman’s complaint was validated at a child sex abuse assessment unit at Our Lady’s Hospital for Sick Children Crumlin in Dublin.

It appeared no further steps were taken in the matter until September 1996 when the English Child Protection Agency contacted the Garda, having been alerted to the woman’s complaint by a social worker in Dublin who was contacted by the woman’s mother, he said.

About April 1997, English police interviewed the alleged perpetrator who later consented to be extradited back to Ireland. In October 1998, he was convicted of rape, unlawful carnal knowledge, incest and indecent assault and jailed for nine years.

That conviction was overturned by the Court of Criminal Appeal in 2001 which ordered a retrial. However, the accused man successfully brought judicial review proceedings to prevent a new trial on grounds of prosecutorial delay.

In that judicial review, Mr Justice Roderick Murphy described as “extraordinary” that records were mislaid and there was no system to trace and date them. The Garda and Minister for Justice said the delay was due to papers being lost somewhere in the prosecution service and later located in archives.

Two officers within the investigating/prosecution services died between 1990 and 1996, they noted.

Mr Justice Hedigan said that after the collapse of the accused’s trial, the woman’s mental condition deteriorated and she was diagnosed with post-traumatic stress disorder.

Her lawyers argued the deterioration was due to her being denied justice due to the failure to properly pursue a prosecution. That failure constituted negligence and breach of duty on the part of the Garda and State defendants and the woman’s constitutional rights to bodily integrity and privacy were also breached, it was claimed.

Mr Justice Hedigan said that while the woman was just 12 years old when she complained of rape and it was foreseeable that leaving her “in limbo” for six years 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.