Civil Trials
Cases
D.F. v Garda Commissioner
[2013] IEHC 5
JUDGMENT of Mr. Justice Hogan delivered on the 14th day of January 2013
1. Where a plaintiff sues for false imprisonment and intentional trespass to the person along with a claim for negligence, must the ensuing trial always be with a jury? This is the significant procedural point which arises on the defendants’ application by motion to this Court for directions as to the mode of trial of proceedings which involves claims by the plaintiff for damages for false imprisonment and negligence.
2. The issue arises in the following way. The plaintiff is a 27 year old young man who, according to his family, is severely autistic. His testamentary guardian, Ms. K.M. – who is herself a special needs assistant – has sworn an affidavit to the effect that the plaintiff is extremely intellectually disabled and that he has a very limited ability to communicate. When not attending an adult learning disability centre, Mr. F. spends much of his days looking at horses as they gambol in a field adjoining his grandparents’ house. He rarely moves from this area when he is at home and repetitive behaviour of this kind is, apparently, a feature of his severely autistic condition. In their defence the State defendants plead that they have no direct knowledge of these disabilities and await direct thereof.
3. The incident which gave arise to these proceedings occurred on 24th September, 2010. The plaintiffs testamentary guardian, Ms. M., contends that Mr. F. had taken up his habitual position outside his grandparents’ house when he was unlawfully arrested by members of An Garda Siochana at about 5pm in the evening and brought to a local Garda station. It is contended that no effort was made by the Gardai to speak with either his mother or father, both of whom lived close by. I should pause here to say that the plaintiff’s mother sadly died in January, 2012. While she was not living with the plaintiffs father at the time of her death, both parents were actively involved in caring for him.
4. According to Ms. M., the arrest of Mr. F. and his detention in unusual surroundings caused him acute and unusual distress. The custody records show that the plaintiff had been detained for just under an hour and that he had been arrested under s. 12 of the Mental Health Act 2001. He was released when his father – a registered medical practitioner- attended (along with the plaintiff’s mother) at the Garda station and explained that he suffered from severe autism.
5. The defence filed by the State defendants does not dispute a good deal of this. It is contended, however, that a member of the public saw the plaintiff chase two women with a large stick or a branch of a tree in the general vicinity of the plaintiff’s grandparent’s house, although neither woman was actually struck. The Gardai were then alerted and, on their arrival, following a minor altercation, the plaintiff was then identified as the individual who had given chase to the two women. When one of the Gardai involved, a Garda Fallon, attempted to speak to Mr. F., he realised that he was suffering from a mental condition, as he was unable to get Mr. F.’s name or any other pertinent details. Garda Fallon arrested Mr. F. pursuant to s. 12 of the Mental Health Act 2001. Mr. F. was then placed in handcuffs and conveyed by the patrol car to the local Garda Station.
6. Upon arrival at the Garda station at around 5.10pm, the Gardai endeavoured to contact some local general practitioners, but to no avail. Recorded messages in both cases suggested that the general practitioners in question would come on duty again at 6 pm. It appears, however, that another member attached to the station recognised the plaintiff, although he could not immediately recall his name. This member then made appropriate inquiries and, having satisfied himself as to the plaintiff’s identity, drove to the plaintiffs house where he spoke with the plaintiffs mother and informed her of the arrest.
7. The plaintiff’s mother then arrived at the station shortly after 5.30 p.m. and comforted her son. The member in charge, a Sergeant Galvin, was informed by her that her son suffered from severe autism. The plaintiff’s father then arrived about twenty minutes later. On being informed that the plaintiff’s father was a registered medical practitioner who could confirm that the plaintiff did indeed suffer from severe autism, he was released by Sergeant Galvin at about 6.05 p.m.
8. The plaintiff contends that he was subjected to inhuman and degrading treatment by being subjected to “unjustified use of restraints designed to and which did “in fact cause [him] additional and unnecessary suffering.” This, however, is expressly denied by the defendants.
9. This is the general factual background to the proceedings. Before determining questions as to the mode of trial, is now necessary to examine the ambit of the plaintiff’s pleadings. The relief sought in the plaintiff’s general endorsement of claim takes the form of claims for declaratory relief and damages. The first two declarations sought are pleas, in effect, that the plaintiffs arrest and detention were both unlawful.
10. So far as the damages claim is concerned, the major claims are for damages in respect of the nominate torts of false imprisonment and assault and battery. Damages are also sought for negligence and breach of duty. The claims for damages for breaches of constitutional rights -liberty, bodily integrity and the privacy substantially replicate the claims embraced in the nominate torts which have been pleaded on the plaintiffs behalf, even if it is also allowed that the breadth and scope of these claims is perhaps not necessarily as confined as that permitted by the common law in respect of the nominate torts.
11. There are also claims for damages for breach of the plaintiff’s rights under the European Convention of Human Rights Act 2003 (“the 2003 Act”); for breaches of the plaintiffs rights under the Charter of Fundamental Rights of the European Union and under the United Nations Convention on the Rights of Persons with Disabilities 2006 (“the 2006 UN Convention”). For present purposes, however, the latter three claims can safely be discounted for the following reasons.
12. First, the claims under the 2003 Act proceed on the implied premise that the provisions of the European Convention of Human Rights have direct effect in Irish law, the objective breach of which sounds in damages. The Supreme Court has, however, confirmed that the ECHR does not have direct effect in Irish law in this sense: see, e.g., McD v. L [2009] IESC 71 and MD v. Ireland [2012] IESC 10, [2012] 21.L.R.M. 305. Moreover, s. 3(2) makes it plain that any claim for damages under the 2003 Act can only be claimed “if no other remedy in damages is available”. But is plain that many other claims for damages are available in this State to a person who claims that they have been unlawfully arrested and detained: these remedies not only include the nominate torts of false imprisonment and assault and battery, but also the action for damages for breaches of constitutional rights such as personal liberty (Article 40.4.1) and the person (Article 40.3.2). If the plaintiff was, in fact, subjected to inhuman and degrading treatment – a claim which, in fairness, I should again point out is emphatically denied by the defendants- then he could sue for damages for breach of his constitutional right to the protection of the person in Article 40.3.2, since the express constitutional protection of the person necessarily precludes treatment of this sort: cf by analogy my own judgment in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 353.
13. It has not been suggested that the remedies available under the common law and the Constitution are in some way inadequate or that they cannot otherwise adequately vindicate the plaintiff’s rights. In these circumstances, the claims under the 2003 Act add little or nothing to the present case.
14. Second, so far as the Charter of Fundamental Rights is concerned, it must be recalled that the rights protected by the Charter are engaged only when the Member State in question is “implementing” Union law within the meaning of Article 51(2) of the Charter. Even taken the broadest possible view of the meaning of the phrase “implementing” Union law, it is well nigh impossible to see how the Charter could come into play in relation to events which are wholly internal to this State and in respect of which Union law plays no role or part.
15. Third, the 2006 UN Convention has not been made part of the domestic law of the State by a law enacted for this purpose by the Oireachtas in the manner required by Article 29.6 of the Constitution. In these circumstances, it is not easy to see how the 2006 Convention can in and of itself give rise to any justiciable legal rights or controversies.
16. The plaintiff’s case, therefore, when reduced to its bare essentials, is a claim for false imprisonment, assault and battery, negligence and breach of constitutional rights. The plaintiff is undoubtedly entitled to a jury trial in respect of the claim for false imprisonment and intentional trespass to the person. The real questions, accordingly, are, first, whether the plaintiff should be debarred from seeking a jury trial by reason of the existence of other claims – such as the claim in negligence – not otherwise attracting the entitlement to jury trial and, second, assuming the answer to the first question is in the negative, the form which that trial should take.
Is the plaintiff debarred in the circumstances of the present case from seeking a jury trial?
15. This general issue depends on the construction of s. 1 of the Courts Act 1988 (“the 1988 Act”), particularly as construed by the Supreme Court in Sheridan v. Kelly [2006] IESC 26, [2006] 1 IR 314. While s. 1 of the 1988 Act abolished the right to jury trial so far as negligence actions were concerned, the traditional right to jury trial in respect of other nominate torts was generally left undisturbed. Section 1(1) and s. 1(3) of the 1988 Act provide in relevant part as follows:
“(1) Notwithstanding section 94 of the Courts of Justice Act, 1924 or any other provision made by or under statute, or any rule of law, an action in the High Court-
(a) claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any such contract or any such provision),
(b) [not relevant]
(c) [not relevant]
or a question of fact or an issue arising in such an action, shall not be tried with a jury.
(2) [not relevant]
(3) Subsection (1) of this section does not apply in relation to-
(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court, on the application of any party, made not later than 7 days after the giving of notice of trial or at such later time as the court shall allow, or on its own motion at the trial, that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespass to the person or both, as the case may be, in respect of that act or omission, or
(c) a question of fact or an issue arising in an action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespass to the person or both, as the case may be, in respect of the act or omission concerned.”
16. It will be seen that the effect of s. 1(1) of the 1988 Act was to abolish the then pre-existing entitlement to jury trial in respect of actions for negligence, while s. 1(3)(b) preserved the right to jury trial in the case of false imprisonment and intentional trespass to the person. Section 1(3)(c) is, however, in the nature of anti avoidance provision in that this sub-section allows this Court to disregard claims of false imprisonment and intention trespass where, in effect, these claims have been strategically included in the pleadings in order to circumvent the prohibition on the abolition of jury trials. Put another way, a plaintiff cannot overcome the statutory abolition of the right to jury trial in respect of claims in negligence merely by pleading a nominate tort such as false imprisonment as well and joining this claim to a claim in negligence.
17. This was the general background to Sheridan v. Kelly. Here the plaintiff claimed damages for sexual assault and negligence against the defendants who were respectively a former principal of a secondary school and the representative of a religious congregation. The essential question for the Supreme Court was whether the fact that the plaintiff also claimed damages for negligence thereby disentitled him to jury trial in respect of the claims based on intentional trespass to the person. In his judgment for the Court, Fennelly J. held that this case came squarely within s. 1(3)(b). In other words, a plaintiff claiming damages for intentional trespass and negligence was still entitled to jury trial under both headings of claim, provided that the damages claims were clearly linked.
18. As Fennelly J. put it ([2006] 1 IR 314, 319):
“It is clear that the core of the plaintiffs claim is that he was sexually assaulted by the first named defendant. Everything alleged can be traced back to that key allegation. Insofar as the claim is simply based on alleged vicarious liability, there is full correspondence between the damages alleged to flow from the acts of the two defendants. However, the subsection allows a plaintiff, in certain cases, and provided he claims damages as a result of one of the two specified causes of action, namely “false imprisonment or intentional trespass to the person,” or both also to seek jury trial where he pleads that he has suffered damages caused by, for example, negligence. The subsection requires, however, that these two causes of action be linked by a claim that the damages arose “in respect of the same act or omission.” The focus is on the damages and the relevant act or omission which causes them. The same act may give rise to a claim under different legal headings. Acts giving rise to a breach of contract may also, depending on the factual context, constitute negligence or trespass. The subsection does not require that the damages be identical. They may be “claimed in addition, or as an alternative, to the other damages claimed…”
In the present case, the plaintiffs claim is that he suffered personal injury as a result of the assaults committed by the first named defendant. Any act alleged against the second named defendant is claimed to have led to the same damage. I am satisfied that this claim comes within s. 1(3)(b) of the Act of 1988. Therefore, the plaintiff is entitled to have his claim heard by a judge sitting with a jury. I would allow the appeal and substitute an order dismissing the notice of motion of the second named defendant.
Nothing in this judgment affects the normal discretion of the High Court to decide whether the different issues in the case are to be tried separately or together, whether by the application of Order 18, rule 1 of the Rules of the Superior Courts or otherwise.”
19. In my view, the decision in Sheridan clearly governs the present case. The core of the plaintiffs claim is one of false imprisonment following a wrongful arrest. Just as in Sheridan, the claim in negligence is directly linked to and flows from this arrest. Thus, for example, among the particulars of negligence given at paragraph 26(b) of the statement of claim is the contention that there was negligence on the part of the Garda (which can be imputed by law to the defendants) by arresting the plaintiff, a person with obvious special needs, in circumstances “where the defendants had no lawful basis to do so” and where they were under a duty “to make inquiries from his parents, grandparents or neighbours, yet they failed to do so”.
20. In these circumstances, the claim for damages for personal injuries caused by the negligence and breach of duty of another falls within the exception in s. 1(3)(b) of the 1988 Act and can, in principle, be tried with a jury.
What form should the jury trial take?
21. The next issue relates to the question of what form should the jury trial take. Would it be appropriate to have separate trials on the false imprisonment and negligence questions? Or should both be tried by a jury, and, if so, should the jury have a role in determining the core issue of whether the arrest under s. 12 of the Mental Health Act 2001 was unlawful? Or should there be a form of hybrid trial, with particular roles and tasks assigned separately to judge and jury? If this is not practical, should the hearing be conducted by a trial judge sitting without a jury?
22. The proposal that there should be separate trials on the issues of negligence and false imprisonment can be immediately discounted. This would be purely wasteful and duplicative of court resources and would simply impose unnecessary costs burdens on the parties.
23. In Bradley v. Maher [2009] IEHC 389 the defendant had picketed the offices of the plaintiff firm of solicitors with placards setting out, it was alleged, untrue and defamatory allegations relating to the manner in which the firm had handled the estate of the defendant’s uncle. The plaintiff firm then sued for defamation and for an order restraining the picketing of the premises. When the plaintiffs set the matter down for trial without a jury, the defendant sought to have that notice for trial set aside, claiming that he was entitled to a jury trial on the defamation claim.
24. Clarke J. held that, on balance, the most appropriate course of action was to direct trial by judge alone. He noted that there was nothing “inappropriate in the joinder ofthe defamation and the picketing aspects of this case”, so that it could not be said:
“that their joinder was [a] device to deprive Mr. Maher [of] an entitlement to jury trial. Rather it is obvious that both aspects of the claim are real, connected and proper to be decided in one set of proceedings.”
25. A critical feature of the case, however, was that the jury could not determine the picketing aspect of the case. Even in a hybrid trial, there would be real difficulties in segregating out the issues which pertained to the defamation claim on the one hand and that which pertained to the negligence action on the other. Clarke J. found that the risk of cross-contamination between the two aspects of the claim was too great and it was this factor which persuaded him to reject a form of hybrid trial in that case.
26. There are, essentially, two reasons why those factors do not apply in the present case. First, it is clear that, unlike the picketing claim in Bradley, the negligence claim here is completely interwoven with the false imprisonment claim. Of course, the linkage between the alleged defamation and the picketing in Bradley was admittedly strong. Yet it would have been perfectly possible for the plaintiff in Bradley to have succeeded in one claim independently of the other, whereas this cannot easily be said of the negligence claim here. Second and more importantly, in view of the directions which I now propose to give regarding the precise form of trial, the potential for cross-contamination between the respective claims can be significantly reduced, if not entirely eliminated.
Directions as to the form of trial
27. Order 36, r. 7 RSC provides:
“The court may, if it shall appear desirable, direct a trial without a jury of any question of fact, or partly of fact or partly of law, arising in any cause or matter which, without any consent of parties, can be trial without a jury, and such trial may, if so ordered by the court, take place at the same time as a the trial by a jury of any issues of fact in the same cause or matter.”
28. In my judgment, it would be appropriate that all issues concerning the legality of the plaintiffs arrest (including questions as to the legality of the arrest and whether the defendants were negligent in effecting the arrest) should be determined by the judge alone, while leaving all other issues (including, for example, any issues should they arise- in relation to allegations of ill-treatment of the plaintiff while in custody and, where appropriate, damages in respect of all claims) for the determination by the jury in accordance with the usual practice. I have come to this conclusion because it would be inappropriate for the jury to pronounce on issues which are essentially issues of law, at least where those issues do not rest on the judgment and good sense of the community of which the jury are but representatives and in respect of which the jury are, either expressly or impliedly, designated arbiters by law. Thus, for example, the legality of an arrest is a matter of objective law in respect of which the jury have no expertise or function, even if antecedent factual issues will also have to be determined by the trial judge in the process of determining this issue.
29. The same is true- at least in this case- of the negligence claim, which is interwoven on these facts with the false imprisonment claim.
30. Of course, I do not overlook the fact that as a matter of established legal history and practice, juries were (and are) given a role in determining issues of law. But this was (and is) always in a context where the jury had a role in determining the appropriate community values and standards. Thus, for example, ever since the Libel Act 1792 (Sir Charles Fox’s Act), the issue of libel or no libel in a prosecution for criminal libel was declared by statute to be a matter for the jury and the thinking behind this legislation has clearly historically been applied by analogy to civil claims in defamation as well.
31. Likewise, prior to the enactment of the 1988 Act, juries did pronounce on essentially legal questions in negligence: did, for example, the employer provide the employee with a safe system of work. But this was all in a context where the jury’s input into the practical application of the law of negligence was a reflection of these community values and standards and where this role had been assigned by law to the jury. The Oireachtas has seen fit to dispense with this following the enactment of the 1988 Act and inasmuch as the jury can now hear a claim in negligence, it is merely as ancillary to a claim in respect of an intentional nominate tort such as false imprisonment and assault and in order to avoid the inconvenience of separate trials in respect of the distinct causes of action. Critically, however, the jury no longer has been given a role as arbiter of the community’s values in negligence matters. This was a decision taken by the Oireachtas for policy reasons and it would be therefore inappropriate for that role to be resurrected in the present case simply by reason of the joinder of the negligence claim to a claim in false imprisonment.
32. If, therefore, it falls to the trial judge to determine the legality of an arrest in a false imprisonment claim, then no greater role for the jury could now be claimed in relation to a subsidiary claim in negligence. All of this simply means that the jury cannot be restored to their previous pre-1988 role in respect of negligence claims as arbiter of community standards and norms in respect of the appropriate standard of care, merely because that claim has been joined to a claim for false imprisonment and even if that joinder is entirely appropriate on the facts and not simply a pleader’s stratagem to secure a jury trial on the negligence question.
33. The same conclusion can be arrived at by an examination of the matter by reference to first principles and such authority on the point as there is. While it is true that, generally speaking, all questions of fact are determined by the jury, this rule is itself subject to “numerous and important exceptions”: Salmond: Jurisprudence (11th ed.) (ed. Glanville Williams)(at p. 68). This passage from Salmond- which was itself quoted with approval by Henchy J. in The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460, 486-587- continues thus:
“Though there are no cases in which the law (in the sense, at least, of the general law of the land) is left to a jury, there are many questions of fact that are withdrawn from the cognisance of a jury and answered by the judge. The interpretation of a document may, for example, may be, and very often is, a pure question of fact, and nevertheless falls within the province of a judge. So the question of reasonable probable cause for a prosecution- which arises in actions for malicious prosecution- is one of fact and yet one for the judge himself. So it is the duty of a judge to decide whether there is any sufficient evidence to justify a verdict for the plaintiff; and if he decides that there is not, the case is withdrawn from the jury altogether; yet this is a mere matter of fact, underdetermined by any authoritative rule of law. By an illogical though convenient usage of speech, any question which is thus within the province of the judge instead of the jury is called a question of law, even though it may be in the proper sense a pure question of fact. It is called a question of law because it is committed to and answered by the authority which normally answers questions of law only.”
34. In Conroy the issue was whether the question of the admissibility of a contested statement made while in custody should be determined by the judge who presided at the trial of an accused or whether, alternatively, all such issues should be determined by a jury. In the earlier decision in The People (Director of Public Prosecutions) v. Lynch [1982] I.R. 64 the Supreme Court had suggested that the latter option was the correct one.
35. That aspect of Lynch was overruled by the Supreme Court in its later decision in Conroy. Henchy J. not only approved the above passage in Salmond, but held that questions of the admissibility of evidence are “reserved exclusively for the judge even though such questions may involve or rest entirely on questions of fact.” Any suggestion to the contrary was “novel” and “not supported by either statutory or judicial authority”.
36. It is true that some of his reasoning rested on the application of Article 38.1 and Article 38.5 of the Constitution to criminal trials and the manifest unfairness that might attend the trial if prejudicial evidence – later held to be inadmissible – could nonetheless be ventilated before a jury on a voir dire. As Henchy J. himself explained ([1986] I.R. 460, 488):
“A jury thus informed of the circumstances and contents of the rejected statement would lack the characteristics of an impartial jury for the trial of guilt or innocence. A verdict of guilty thus resulting could not be allowed on appeal to stand.”
37. While accepting that this later aspect of Conroy has no direct application to a civil action such as the present one, the decision is nonetheless of considerable importance in that it delineates the proper division which must otherwise attend the prospective roles of judge and jury even in civil actions. This is especially so given that the issue of the respective roles of judge and jury in false imprisonment actions of this kind is largely bereft of direct authority. It may be noted in passing, however, that in another false imprisonment action, Walshe v. Fennessy [2005] IESC 51, [2005] 3 I.R.516, the trial judge (Quirke J.) accepted that all issues of fact as well as law relating to whether the arrest of the plaintiffs by members of An Garda Síochana under s. 30 of the Offences against the State Act 1939 had to be determined by judge alone and were not permitted to be determined by the jury. On appeal to the Supreme Court, Geoghegan J. noted that no appeal had been taken against that determination and that he was “assuming that the accepted procedure was correct in law”: see [2005] 3 I.R. 516, 519.
38. But returning to the reasoning of Henchy J. in Conroy, it would seem to follow from that judgment that questions as to the validity of an arrest are matters which fall directly within the province of a judge alone. It would, for example, be illogical if questions of the admissibility of evidence in general and statements made in Garda custody in particular were reserved for the trial judge alone, yet the jury could pronounce on the validity of an arrest. For a start, the admissibility of a statement made while in custody while often turn on the validity of an arrest. Just as importantly, however, Conroy is really authority for the proposition that mixed questions of law and fact – the admissibility of evidence, whether there was probable cause in a malicious prosecution and so forth – are matters for the trial judge alone and not the jury. Judged by this standard, one cannot discern any principled basis by reference to which issues bearing on the validity of an arrest could be left to the jury.
39. All of this means is that the legal issues in the trial- whether the arrest and detention was lawful, whether the defendants were negligent and so forth – will be exclusively matters for the trial judge to determine. This also means that the issue of any declaratory relief in relation to the validity of the arrest and detention will be exclusively a matter for the trial judge to determine. All other matters (including the question of damages in respect of all claims, should this arise) remain, in principle, at any rate, matters for the jury.
Conclusions
40. It follows from the foregoing that the plaintiff is entitled to jury trial in respect of the claims contained in the general endorsement of claim. I will, however, direct pursuant to 0. 36, r. 7 that all issues touching on or concerning the legality of the arrest and detention of the plaintiff on 24th September, 2010, by members of An Garda Siochana (including the claims for negligence and breach of duty) are to be determined by the trial judge alone, with the remaining issues to be determined, subject to the appropriate directions of the trial judge, by the jury.
MARA (Nigeria) (infant) v Minister for Justice and Equality
[2014] IESC 71
Judgment of Mr Justice Charleton delivered on the 12th day of December 2014
1. The applicant/appellant is an infant asylum seeker who was born in Ireland in late 2010. Her mother, who is also the next friend in this case, came to Ireland from Nigeria in August 2005 and applied for asylum for herself. That claim was rejected by the Refugee Applications Commissioner in November of that same year. Subsequently and separately, applications were made by her on behalf of her two daughters. On 12th July, 2011, the claim of this applicant/appellant was rejected by the Refugee Applications Commissioner. The grounds put forward by her mother for seeking the State’s protection on her behalf consisted of a claimed fear by her mother that she would be subjected to female circumcision in Nigeria and that pressure to undergo this invasive procedure would come from her family and neighbours and that defiance would have unpleasant consequences from a magic practitioner, apparently called “the Mascurate”. Leave was sought before the High Court to challenge by way of judicial review the finding refusing this infant applicant/appellant a recommendation that she be declared a refugee. This is an appeal from that judgment and order of Cooke J dated 19th December, 2011 (Unreported, High Court, Cooke J, 19th December, 2011) wherein he acceded to a motion from the respondents to dismiss the applicant/appellant’s claim for leave to commence a judicial review; holding that a High Court challenge was bound to fail. The trial judge held that whatever alleged defects there might be claimed to be in the analysis of the application by the Refugee Applications Commissioner, under section 13 of the Refugee Act 1996 as amended (“Act of 1996”), in deciding that this applicant/appellant was not a refugee, this would be most properly cured by a statutory appeal to the Refugee Appeals Tribunal and that, in all the circumstances, judicial review was not an appropriate remedy. Paragraphs 9 and 10 of his judgment state his reasoning:
It is now well settled in law that where the statutory appeal is available and has been invoked in good time, it is only in exceptional cases that the High Court will entertain an application for judicial review of the s. 13 Report and only then when the report is shown to have some potentially independent consequences for an applicant which is incapable or inapt to be dealt with by the statutory appeal.
Having regard to the fact that the only issue in this case is the reality of the alleged fear that this infant might be exposed to a risk of forcible circumcision against the wishes of her mother if returned to Nigeria, the Court is satisfied that no valid reason has been advanced as to why the statutory appeal in this case would be inadequate, ineffective, or inconvenient. In practical terms, as this child has never been to Nigeria and whose existence may not even be known to her mother’s husband (who has in any event disappeared), the only appealable aspects of the s. 13 Report will appear to turn upon the possibility of a general threat to the child of circumcision in Nigeria and the availability of local protection against the specific alleged threat from the family or the village, if the mother and child relocated elsewhere. These are issues that turn upon consultation of country of origin information at this stage and are clearly dealt with adequately and more conveniently by the statutory appeal.
2. While that judgment was appealed to this Court, no stone was left unturned on behalf of the applicant/appellant: on her behalf, her mother also exercised the statutory right of appeal to the Refugee Appeals Tribunal and, in addition, later sought subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006. The appeal to the Refugee Appeals Tribunal was rejected and so was the application for subsidiary protection. The former decision was notified to the applicant/appellant through her mother by letter dated 30th April, 2012 which also enclosed the relevant report. The trend of reasoning by the Refugee Appeals Tribunal focused particularly on the credibility of the claim made. The following quotation indicates the approach taken:
The Applicant’s mother indicates that she fears that [her infant daughter] will have to be circumcised in Nigeria and that were the Applicant to go to Nigeria she would have to see a ‘Mascurate’ or be harmed by the Mascurate. The Applicant’s mother previously sought asylum for the Applicant’s sister [redacted] but no mention was made of a fear of [female genital mutilation] or a fear of the Mascurate in relation to [her, who] as a female sibling is at equal risk from the tradition of [female genital mutilation] or the Mascurate. If the Applicant’s mother’s fears of [female genital mutilation]/the Mascurate were genuine it would be reasonable to expect that she would have held these fears for [her other daughter] and previously have articulated same. The Applicant’s mother was unable to provide a reasonable explanation as to why she had not previously mentioned these fears for her [other daughter]. The aforegoing seriously undermines the well-foundedness of the Applicant’s claim.
3. In the notice of appeal, dated 9th January 2012, against the judgment and order of Cooke J it is contended, in several forms of expression, that the report of the Refugee Applications Commissioner was not overtaken by the decision, on appeal, of the Refugee Appeals Tribunal. In particular, it is claimed that the earlier report had “potentially independent consequence” for the applicant/appellant; that it had an “independent existence”; and had “ongoing significant consequence” for this infant. In addition, it is sought to be argued that the decision of the learned trial judge striking out the judicial review leave application was incorrect. Since it is contended on behalf of the respondents that the statutory appeal from the Refugee Applications Commissioner to the Refugee Appeals Tribunal and the decision of that tribunal effectively rendered historical the earlier decision, the first issue to be decided is whether this judicial review leave application is moot. If it is, it would be inappropriate to consider the correctness of the learned trial judge’s decision to strike out the leave application on the basis of the existence of an alternative remedy. Finally, the Court has sought the assistance of counsel on the question of anonymity of asylum applicants and whether their names should be redacted notwithstanding that they very often seek judicial review in open court in the High Court of decisions against them in the otherwise private asylum process. Some guidance is needed on that point.
Mootness
4. In general, it is not the function of the courts to grant advisory judgments. A court should not pronounce on questions which are not necessary for the adjudication of the issues between the parties and should not issue a decision on points of law or of fact that no longer affect the rights and liabilities of the parties. Where an issue has already impacted on the actual entitlements of a party, or may reasonably do so in the future if left unresolved, it is appropriate to adjudicate upon it. A course of conduct may have come to an end, but if it leaves in its wake consequences for litigants, issues as to the rights and wrongs of what has happened clearly require decision.
5. The answer to the question of whether this appeal is now moot in the light of the decision of the Refugee Appeals Tribunal depends upon the proper construction of the nature of the appeal to that body from the decision of the Refugee Applications Commissioner. That appeal, it is argued on behalf of the respondents, is in the nature of a complete re-hearing where, as a matter of statutory construction, the obligation on appeal that is cast upon the Refugee Appeals Tribunal is to fully consider and pronounce on each and every ground upon which an applicant for asylum has taken an appeal, or to otherwise make a decision as to the substance of the appeal.
6. The Refugee Act 1996, as amended, governs the process of asylum applications. Under section 2 of the Act of 1996, as amended by section 7(a) of the Immigration Act 2003, the fundamental definition of what is a refugee is given:
2.—In this Act “a refugee” means a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it, but does not include a person who—
(a) is receiving from organs or agencies of the United Nations (other than the High Commissioner) protection or assistance,
(b) is recognised by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country,
(c) there are serious grounds for considering that he or she—
(i) has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes,
(ii) has committed a serious non-political crime outside the State prior to his or her arrival in the State, or
(iii) has been guilty of acts contrary to the purposes and principles of the United Nations.
7. Under section 5 of the Act of 1996, the principle of non-refoulement is set out:
5. —(1)A person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion.
(2) Without prejudice to the generality of subsection (1), a person’s freedom shall be regarded as being threatened if, inter alia, in the opinion of the Minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature).
8. A refugee is usually someone who flees from persecution in their own country and seeks asylum in another land, but the definition of what a refugee is under section 2 makes it clear that a change of authority in their country of origin can mean that a person who is already abroad for non-persecution reasons is entitled to seek refuge sur place; in other words, to seek refuge where he or she is, because of a well founded fear of persecution should they return to their country of origin. The targeted nature of the threat of persecution which is inherent in the definition of a refugee is to be contrasted with the concept of subsidiary protection. This was introduced by Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (known as the Qualification Directive). National legislation brought the Directive into force through the European Communities (Eligibility for Protection) Regulations 2006 (SI 518 of 2006) (known as the Protection Regulations). The concepts of shelter from return to persecution and subsidiary protection are inter-related. The scheme in Ireland under the relevant legislation provides that a person cannot apply for subsidiary protection unless that person has first applied for and been refused refugee status; see Regulation 2(1) (“person eligible for subsidiary protection”) of the Protection Regulations. To qualify for subsidiary protection, a person must be someone in respect of whom “substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, would face a real risk of suffering serious harm”. This is defined in Article 15 of the Qualification Directive as “torture or inhuman or degrading treatment or punishment of an applicant in the country of origin”; the “death penalty or execution”; or “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.” Under the administrative procedures currently in place, persons who have been refused refugee status, under the Act of 1996, as amended, will be sent a letter informing them that they may also seek subsidiary protection or that they may seek leave to stay in Ireland pursuant to section 3 of the Immigration Act 1999, as amended, or that they may simply depart. Section 3 of the Act of 1999 also contains detailed provisions for the deportation of those illegally in the State. If an application, should it be made, to stay in the State because of a claimed need for subsidiary protection or on separate humanitarian grounds, is not acceded to by the Minister, a deportation notice will, in very many cases, be issued. Those to whom a deportation notice issues will often be persons who have failed in their application for refugee status and, if they also applied, who have also failed, consequent upon that, in their application for subsidiary protection or for leave to remain. While this is the usual situation, a deportation order may also be made where no claim for refugee status has been made but because, for instance, a student or a tourist has overstayed the time allotted on their visa, or in respect of someone who is otherwise unlawfully in the State.
9. Under the Act of 1996, the Refugee Applications Commissioner is established under section 6. It is declared that this statutory person “shall be independent in the exercise of his or her functions under this Act.” Pursuant to section 8, a person who arrives at the frontiers of the State seeking asylum shall be interviewed by an immigration officer, and the immigration officer shall inform that person that he or she may apply under section 8(1)(a) for a declaration of refugee status and that he or she is entitled to consult a solicitor and the United Nations High Commissioner for Refugees, or a representative in Ireland. A person so applying, under section 9, is to be given leave to enter the State. Additionally, a person who at any time is in the State (whether lawfully or unlawfully) and is seeking the status of a refugee may apply to the Minister for a declaration of refugee status pursuant to section 8(1)(c). On such an application being made, a person unlawfully in the State becomes an applicant for asylum, and thus lawfully in the State for that purpose under section 5 of the Immigration Act 2004. If a person does so apply, he or she is to be interviewed by an authorised officer or an immigration officer, who must inform the person that he or she is entitled to consult a solicitor and the High Commissioner. An applicant for refugee status is entitled to remain in the State until that process is complete pursuant to section 9(2) of the Act of 1996. This application process can be completed by the grant of refugee status, by refusal, by withdrawal of the application or by transfer to another country under the Dublin Convention. As provided for in section 11 (as amended), the function of the Refugee Applications Commissioner is “to investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration should be given.” This will involve giving directions to an authorised officer to interview the applicant concerned and to furnish a report. Under section 11A, as inserted by section 7(f) of the Immigration Act 2003, an applicant “shall be presumed not to be a refugee unless he or she has shown reasonable grounds for the contention that he or she is a refugee.” The function of the Refugee Applications Commissioner is to recommend to the Minister for Justice, Equality and Law Reform whether an applicant should be declared to be a refugee. Should a recommendation be negative, section 11A (3) provides that where an applicant appeals “against a recommendation of the Commissioner under section 13, it shall be for him or her to show that he or she is a refugee.” Credibility is central to that process. Particular provisions are set out in section 11B as to the assessment of credibility. There is a duty of cooperation upon an applicant who, under section 11C, is obliged to “furnish to the Commissioner or the Tribunal, as may be appropriate, as soon as reasonably practicable, all information in his or her possession, control or procurement relevant to his or her application.” The consequent report that is furnished to the Minister is made under section 13 (as amended). A special provision within that section can constrict the form of appeal that is available. Section 13 (5) enables a limitation on the statutory right of appeal to a documentary appeal only where no basis, or a minimal basis, has been shown for the contention that the applicant is a refugee; where false, contradictory, misleading or incomplete information has been given; where the applicant failed without reasonable cause to make an application as soon as reasonably practicable after arriving in the State; where the applicant had lodged a prior application for asylum in another state which is party to the Geneva Convention; or where the applicant was a national of, or has a right of residence in, a country of origin which has been designated a safe country by order under section 12(4). Croatia and South Africa are examples of such safe countries. Where the Refugee Applications Commissioner has decided not to recommend that an applicant be given the status of a refugee, such an applicant has, under section 13(10), an entitlement to reasons in writing together with an indication of the nature and source “of any other information relating to the application which has come to the notice of the Commissioner in the course of an investigation by him or her”. The nature of the process is investigative. It is not adversarial or bound by rules of procedure or evidence. Its purpose is to find the truth by enquiry.
10. Section 15 of the Act of 1996, as substituted by section 11(1)(j) of the Immigration Act 1999, provides for the setting up of the Refugee Appeals Tribunal as follows:
15- (1) On the establishment day there shall stand established a Tribunal to be known as the Refugee Appeals Tribunal (in this Act referred to as ‘the Tribunal’) to consider and decide appeals under section 16 of this Act.
(2) The Tribunal shall be independent in the performance of its functions.
(3) The provisions of the Second Schedule shall have effect in relation to the Tribunal.
11. Since section 16, as amended, establishes the parameters of the appeal. Since the nature of statutory appeals varies considerably from one piece of legislation to another, that section should be quoted in full:
16.— (1) The applicant may appeal in the prescribed manner against a recommendation of the Commissioner under section 13 (other than a recommendation pursuant to section 13(2)).
(2) The Tribunal may—
(a) affirm a recommendation of the Commissioner, or
(b) set aside a recommendation of the Commissioner and recommend that the applicant should be declared to be a refugee.
(2A) Where an applicant fails, without reasonable cause, to attend an oral hearing under subsection (10), then unless the applicant, not later than 3 working days from the date fixed for the oral hearing, furnishes the Tribunal with an explanation for not attending the hearing which the Tribunal considers reasonable in the circumstances his or her appeal shall be deemed to be withdrawn.
(2B) Where—
(a) it appears to the Tribunal that an applicant is failing in his or her duty to co-operate with the Commissioner or to furnish information relevant to his or her appeal, or
(b) the Minister notifies the Tribunal that he or she is of opinion that the applicant is in breach of subsection (4)(a), (4A) or (5) of section 9,
the Tribunal shall send to the applicant a notice in writing inviting the applicant to indicate in writing (within 15 working days of the sending of the notice) whether he or she wishes to continue with his or her appeal and, if an applicant does not furnish an indication within the time specified in the notice, his or her appeal shall be deemed to be withdrawn.
(3) An appeal under this section shall be brought by notice in writing within the period specified in section 13(4)(b) or 13(5)(a) or 13(8)(a), as appropriate, and the notice shall specify the grounds of appeal and, except in a case to which section 13(5) or 13(8) applies, shall indicate whether the applicant wishes the Tribunal to hold an oral hearing for the purpose of his or her appeal.
(4) The Tribunal shall transmit a copy of the notice received by it under subsection (3) to the Commissioner and notification of the making of the appeal to the High Commissioner.
(5) The Commissioner shall furnish the Tribunal with copies of any reports, documents or representations in writing submitted to the Commissioner under section 11 and an indication in writing of the nature and source of any other information relating to the application which has come to the notice of the Commissioner in the course of an investigation by him or her.
(6) The Tribunal may, for the purposes of its functions under this Act, request the Commissioner to make such further inquiries and to furnish the Tribunal with such further information as the Tribunal considers necessary within such period as may be specified by the Tribunal.
(7) The Commissioner shall furnish the Tribunal with observations in writing concerning any matter arising on the grounds of appeal whenever so requested by the Tribunal and a copy of such observations shall be furnished to the applicant concerned and his or her solicitor (if known).
(8) The Tribunal shall furnish the applicant concerned and his or her solicitor (if known) and the High Commissioner whenever so requested by him or her with copies of any reports, observations, or representations in writing or any other document, furnished to the Tribunal by the Commissioner copies of which have not been previously furnished to the applicant or, as the case may be, the High Commissioner pursuant to section 11 (6) and an indication in writing of the nature and source of any other information relating to the appeal which has come to the notice of the Tribunal in the course of an appeal under this section.
(9)
(a) An applicant may withdraw his or her appeal to the Tribunal by sending notice of withdrawal to the Tribunal and the Tribunal shall, as soon as may be, notify the Minister and the Commissioner of the withdrawal.
(b) Where an appeal is deemed to be withdrawn pursuant to subsection (2A) or (2B), the Tribunal shall, as soon as may be, notify the applicant, his or her solicitor (if known), the Minister and the Commissioner of the withdrawal.
(10) The Tribunal shall, where appropriate, following a notice under subsection (3), hold an oral hearing for the purpose of an appeal under this section.
(11)(a) For the purposes of an oral hearing (if any) under this section, the Tribunal may—
(i) direct in writing any person whose evidence is required by the Tribunal to attend before the Tribunal on a date and at a time and place specified in the direction and there to give evidence and to produce any document or thing in his or her possession or control specified in the direction,
(ii) direct any such person to produce any specified document or thing in his or her possession or control, or
(iii) give any other directions for the purpose of an appeal that appear to the Tribunal reasonable and just.
(b) Subparagraphs (i) and (ii) of paragraph (a) shall not apply to a document or thing relating to information as respects which the Minister or the Minister for Foreign Affairs, as the case may be, directs (which he or she is hereby empowered to do) that the information be withheld in the interest of national security or public policy (“ordre public”).
(c) The Tribunal shall enable the applicant and the Commissioner or an authorised officer to be present at the hearing and present their case to the Tribunal in person or through a legal representative or other person.
(d) The Tribunal shall, where necessary for the purpose of ensuring appropriate communication during the hearing, provide the applicant with the services of an interpreter.
(12) Subject to subsection (13), a witness whose evidence has been or is to be given before the Tribunal shall be entitled to the same privileges and immunities as a witness in a court.
(13) Where information has been supplied to the Commissioner, a Department of State or another branch or office of the public service by or on behalf of the government of another state in accordance with an undertaking (express or implied) that the information would be kept confidential, the information shall not, without the consent of the other state, be produced or further disclosed otherwise than in accordance with the undertaking.
(14) An oral hearing under this section shall be held in private.
(15) Notwithstanding subsection (14), the High Commissioner may be present at an oral hearing under this section for the purpose of observing the proceedings.
(16) Before deciding an appeal under this section, the Tribunal shall consider the following:
(a) the relevant notice under subsection (3),
(b) the report of the Commissioner under section 13 (as amended by 26/2003)
(c) any observations made to the Tribunal by the Commissioner or the High Commissioner,
(d) the evidence adduced and any representations made at an oral hearing, if any, and
(e) any documents, representations in writing or other information furnished to the Commissioner pursuant to section 11 .
(16A) The Tribunal shall affirm a recommendation of the Commissioner unless it is satisfied, having considered the matters referred to in subsection (16), that the applicant is a refugee.
(17)
(a) A decision of the Tribunal under subsection (2) and the reasons therefor shall be communicated by the Tribunal to the applicant concerned and his or her solicitor (if known).
(b) A decision of the Tribunal under subsection (2) and the reasons therefor shall be communicated by the Tribunal to the Minister together with a copy of the report of the Commissioner under section 13.
(c) A decision of the Tribunal under subsection (2) shall be communicated to the High Commissioner
(18) The Tribunal shall ensure that an appeal against a recommendation of the Commissioner to which section 13(5) or 13(8) applies shall be dealt with as soon as may be and, if necessary, before any other application for a declaration.
12. This court has recently commented on the difficulty in construing the correct scope of powers of appeal; there in the context of a court appeal from an administrative or quasi judicial tribunal. Normally, a statutory appeal to a court from an administrative or quasi-judicial decision requires that the decision reached “was vitiated by a serious and significant error or a series of such errors” (per Finnegan P, Ulster Bank v. Financial Services Ombudsman [2006] IEHC 323 (Unreported High Court, 1st November, 2006). In Clarke J’s judgment in this court in Fitzgibbon v. Law Society of Ireland [2014] IESC 48 (Unreported, Supreme Court, 29th July, 2014) he points out (at paragraph 1.2) that problems can arise through the use of varying terminology in legislation in the context of appeals which can “lead to significant uncertainty as to the precise form of appeal permitted”. In some instances, recourse to the canons of construction may be necessary in order to determine whether an appeal to a court after an administrative or quasi-judicial decision amounts to a full rehearing or merely to a judicial analysis as to whether a decision was vitiated by serious error and so should be overturned and remitted for rehearing. Here, however, the function of the Refugee Appeals Tribunal is to examine afresh such aspects of the decision of the Refugee Applications Commissioner as are appealed. Initiation of an appeal, under subsection 3, is by a notice in writing. This must specify the grounds of appeal. An applicant may require an oral hearing of that appeal. Under subsection 10, there should be an oral hearing unless that has been barred under section 13(5) or section 13(8). For the purposes of the appeal, whatever information has been brought to the attention of the Refugee Applications Commissioner, or that has come to his or her notice during the investigation of the application for refugee status, should be furnished on the appeal. Subsection 16 makes it clear that, in deciding an appeal, regard is to be had to evidence, to representations, to documents, and to argument. Full disclosure of any reports, observations, or representations is required to be made to the appellant under subsection 8. Powers exist to require the attendance of witnesses, to make directions for the purposes of the appeal and for the production of documents: these are explicitly set out in subsection 11. Such powers, which are as ample, or close to as ample, as those of a court demonstrate unequivocally the duty of the Refugee Appeals Tribunal to fully scrutinise an appeal. On appeal, therefore, the issue is not simply whether any error was made at first instance. The person appealing has the right to attend and present their case in person or through a legal representative, or other individual of their choosing, under subsection 11(c).
13. The duty of the tribunal on appeal, under subsection 16A, is either to affirm the recommendation that refugee status should be refused or the tribunal may make a positive recommendation where it is “satisfied, having considered the matters referred to in subsection (16), that the applicant is a refugee.” Hence, on appeal, there is a complete opportunity to present on behalf of the applicant in aid of this enquiry as to refugee status any new facts or arguments; to reargue the points appealed; to call new evidence for or against the status of the applicant; and to plead the case afresh and in full. The result of the appeal may be the affirmation of the Refugee Applications Commissioner in whole or in part or it may be that for a particular reason argued on appeal the applicant will be found to have established sufficient for a recommendation that the Minister grant him or her refugee status.
14. It is clear from all of this that the form of appeal explicitly set out in the Act of 1996 is not merely a review as to whether any error had been previously made: rather, it is a full and thorough enquiry into the relevant documents and observations as previously furnished to the Refugee Applications Commissioner and the hearing of oral evidence and the reception of documentary evidence and submissions in respect of every point on which an appeal has been lodged. It is also apparent that the duty of the Refugee Appeals Tribunal is to make such rulings or finding of fact as are appropriate.
15. It has been submitted before this Court, on behalf of the applicant/appellant, that on appeal to the Refugee Applications Commissioner issues might be elided or left without decision. The example given in argument was that an appeal might be decided solely on the basis that a substantial territory remained within the country from which the applicant for refugee status had supposedly fled where no persecution of persons of the alleged attributes of the applicant would take place without, on that appeal, deciding whether the applicant had a well founded fear of persecution or was not credible in the account which they are given. Under the Act of 1996, the decision of the Refugee Applications Commissioner is entirely subject to legal and factual review by the Refugee Appeals Tribunal. The purpose of the notice of appeal is to set out the points of fact or law that are important to the applicant and in respect of which he or she disputes the earlier decision. The appeal overturns the record of what has been decided; save and in so far as on appeal it is affirmed. It is only to the extent of that affirmation, if any, on appeal, that the earlier decision stands. In its nature, that appeal is to be regarded as an equivalent change in the record as where a person appeals a criminal conviction in the District Court to the Circuit Court. There, a convicted person may be acquitted on a rehearing or may have their conviction before the District Court affirmed by the Circuit Court. Of course, if a person seeking refugee status on appeal is found not to be a refugee, then the matter is disposed of. If that happens, there has been a hearing at first instance that did not accept that a recommendation be made to the Minister that an applicant should have refugee status and on appeal this will have been affirmed by the tribunal under subsection 16A. In so far as it may be thought necessary by the Refugee Appeals Tribunal, in some cases, to resolve appeals as to the essential point only, or to conclude that a particular issue decides the appeal, while leaving unresolved some other question raised in the notice of appeal, this does not result in any disadvantage to an applicant. Some relevant findings of fact or of law may not be disputed on the appeal. Such findings remain undisturbed notwithstanding the appeal as, under the legislation, there must be a particularisation as to what grounds of the decision of the Refugee Applications Commissioner are disputed. Once the notice of appeal initiates a dispute as to any finding of the Refugee Applications Commissioner, by that appeal such finding is neutralised unless it is affirmed by the Refugee Appeals Tribunal. It would be contrary to the principle of constitutional construction of the legislation, considered in its entirety, for the Minister to be required or entitled to have regard to any aspect of a finding that had been overturned on appeal. A similar consideration applies to any aspect of the original decision which is the subject of an appeal and which is not upheld by that process. Where the Refugee Appeals Tribunal does not consider it necessary to resolve the appeal on any such ground, but decides the appeal either positively in favour of the applicant or negatively against him or her on another ground, so much of the earlier decision as is appealed against is rendered merely historical. There is therefore no remaining or “hovering” disadvantage once an appeal is taken.
16. In essence, an appeal within this process is an active rehearing. That is precisely what happened here. A full opportunity was given to the applicant/appellant to argue whatever points seemed to be germane to the contention made by her mother that she had a well founded fear of persecution in relation to the invasive practice of female circumcision or that she had a well founded fear of persecution by magic practitioners. An analysis of that contention took place in the context of a fair and thorough consideration of the credibility of the evidence and other materials put forward. Given that on these issues, findings of fact were made against the applicant/appellant, and given that the decision of the Refugee Applications Commissioner was affirmed under section 16A of the Act of 1996 by the Refugee Appeals Tribunal, any consideration as to whether the learned trial judge was or was not correct in leaving the applicant/appellant to her appeal remedy under legislation, as opposed to not striking out her judicial review application in the High Court, is entirely moot.
Rights of anonymity
17. Transparency in the administration of justice is part of the democratic system. Citizens are entitled to scrutinise and, it follows, comment on or respectfully criticise the decisions of the judicial branch of government. They also have a basic entitlement to know that judges are behaving properly. This requires, subject to limited exceptions, the public to be admitted to court hearings. The courts are obliged to maintain open doors. Attendance by the public can be notional, in the sense that the court admits all comers subject to the proper running of any hearing, but experience indicates that it is rarely merely only a theoretical exercise. Members of the public can and do attend in court, witnesses from each side and their family members will be present and the press, radio, and television, take a professional interest in litigation, while reporting only on a fraction of cases. Some kinds of court disputes can be so sensitive that it can be right to exclude all save for those with an immediate personal interest. Sexual violence prosecutions are an example of where the Oireachtas has decided to limit rights of attendance in court. Even there, the media can attend, in effect as a guardian of the public’s scrutiny of the proceedings, and may fairly report the facts. Restrictions may also be placed in legislation so that no one is to be identified and no fact making any identification possible is to be published. Having the doors shut to non-participants, a hearing in camera, is the highest form of shield that may be applied in exceptional circumstances to litigants. Other cases can attract lesser forms of circumspection of the public’s entitlement to attend. Hearings can take place with the door of the court open to anyone who wishes to enter, with no in camera sign displayed, but where any wider witnessing through news media is limited by the non-identification of the parties. Non-identification by itself is a lesser, but in many circumstances effective, form of limitation on the right of the public to know while allowing such attendance at the proceedings that preserves scrutiny of judicial conduct and decision making.
18. The origin of this is Article 34.1 of the Constitution which provides:
Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.
19. The case of In re R Ltd [1989] IR 126 concerned section 205(7) of the Companies Act 1963, which enabled a judge dealing with an oppression suit by the director of a company to restrict “the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company” through the making of an in camera order in respect of the proceedings, or any part thereof. Walsh J, giving the main majority judgment, emphasised the wholly exceptional nature of any restriction on the public nature of court hearings and the reporting thereof. An Act of the Oireachtas subsequent to the coming into force of the Constitution was required, he said; thus apparently removing from consideration any common law powers which the courts undoubtedly exercised up to 1937 to protect their own procedures. A distinction was drawn by him between legislative provisions which made an in camera proceeding mandatory, such as family law up to recent times (until the commencement of section 5 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013, which amended section 40 of the Civil Liability and Courts Act 2004), or the restriction on access to sexual violence trials to interested parties and the media subject to preserving the anonymity of the alleged victim, and provisions which vested a discretion in the court of trial. The relevant subsection in that case, section 205(7) of the Companies Act 1963, was discretionary. A legislative provision allowing a judge a discretion to order an in camera hearing was, on its own, insufficient to simply shut the doors of a hearing from beginning to end, as Walsh J made clear at pages 136-137 of the report:
All evidence in proceedings before a court must be taken in public save where otherwise expressly permitted in accordance with the terms of Article 34 of the Constitution. [A statutory provision which] confers a discretionary power … cannot be exercised unless the court is of opinion that the hearing of proceedings under the section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company. That is a condition precedent to the exercise of a discretion but in my view it is not the only condition regulating the exercise of the discretion… [The] section cannot be invoked simply to conceal from the public evidence of wrongful activities on the part of the company or any member of the company or employee of the company or anybody dealing with the company or the good name of any such persons or anybody else… [P]ublicity [is] inseparable from the administration of justice… In seeking to avail of the protection apparently offered by the sub-section the party seeking it must be able to satisfy the court that not only would the disclosure of information be seriously prejudicial to the legitimate interests of the company, but it must also be shown that a public hearing of the whole or of that part of the proceedings which it is sought to have heard other than in a public court would fall short of the doing of justice.
20. On the authority of that case, there has been at least one instance where the Supreme Court lessened the secrecy of an in camera hearing. In Re a Ward of Court (withholding medical treatment) (No. 2) [1996] 2 IR 79, the hearing in the High Court as to whether a severely brain damaged patient, maintained for decades in a near vegetative state, should be allowed to die, proceeded without the media ever being aware that such a case was taking place. Lynch J issued his judgment in public with appropriate redactions and in the presence of the media. When the matter came on appeal before the Supreme Court, notwithstanding the legislative provision providing for in camera hearings in the wardship jurisdiction, the media were allowed to attend and counsel were required to censor their submissions by making no oral reference to any member of the ward’s family or any witness who gave evidence in the court below. Initials were used instead at the hearing and in the subsequent judgment.
21. In Irish Times Limited and Others v. Ireland and Others [1998] 1 IR 359 the banning by a trial judge in the Circuit Court of any report of a criminal trial during its course by the media was in issue before the Supreme Court. This decision followed on the earlier discharge of a jury on what was a serious drug importation charge because of inaccurate newspaper reports that had been read by the jury. Morris J in the High Court construed Article 34.1 as involving both a positive requirement that court proceedings should be held with a full right of access by the public and that nothing should be done to discourage the publication to the public by the media of fair and accurate reports of proceedings. On appeal, since no legislative provision enabled that order, it was overturned. Absence of statutory authority was not the reason for the decision, however. At common law, in hearing criminal trials, the courts were entitled to restrict reporting in aid of a fair trial, a power subsequently encapsulated in Article 38.1 requiring criminal trials to be “in due course of law.” The rights identified since 1937 have proven to be similar to those in American due process law. All arise by operation of the Constitution through the need to apply such processes in the trial of offences that will yield a fair result. None of these rights arose through statute, though some may be expressed in legislative provisions. Article 40.6 incorporates the right of citizens to “express freely their convictions and opinions.” That Article also recognises the “organs of public opinion” as part of the “rightful liberty of expression, including criticism of Government policy”, enabling restriction only where these rights of expression are “used to undermine public order or morality or the authority of the State.” In that case, banning the media from reporting on an ongoing case was not necessary to ensure a fair trial. Judges have overall charge of court processes. Sometimes orders are necessary in criminal cases to ensure a fair result. For instance, arguments on the admissibility of evidence in the absence of the jury cannot be reported before the jury gives its verdict. The common law provided for this in criminal trials.
22. Civil trials are not so different from criminal litigation. There is a right inherent in the existence of the courts under the Constitution for the public to litigate and the right to litigate may itself require protection where otherwise it may be undermined should access by the public or even the fair and accurate reporting of court proceedings not be restricted. The Irish Times decision acknowledged that in criminal trials, reports of evidence in the absence of the jury could not appear while that jury was continuing with the case and that in necessarily pressing circumstances, the right of an accused to a fair trial, and the public entitlement that such a trial should take place, might result in such restrictions of access and temporary curtailment of reporting that ensured the integrity of the court process. In the result of that case, the blanket ban imposed by the trial judge was found not to be necessary; nonetheless restrictions were possible. The mere absence of a legislative provision does not leave the courts powerless in their duty to ensure a just result and to search for the truth. As Denham J commented at page 399:
While there is no discretion in Article 34.1 to order a trial otherwise than in public Article 34.1 does not exist in a vacuum. There are competing constitutional rights, rights relating to other persons and in addition the court has duties under the Constitution. The court has a duty and jurisdiction to protect constitutional rights and make such orders as are necessary to that end. There were several rights for consideration at the trial before the Circuit Court. The accused had a right to a trial in due course of law (Article 38.1) and to a trial with fair procedures (Article 40.3). The trial judge had a duty to uphold the Constitution and the law and to defend the rights of the accused. Balanced against that was the community’s right to access to the court, to information of the hearing, to the administration of justice in public (Article 34.1). That right is clearly circumscribed by the terms of Article 34.1. However, also in the balance was the freedom of expression of the community, freedom of expression central to democratic government, to enable democracy to function. There was also the freedom of expression of the press. Thus consideration should have been given to article 40.6.1º(i), which may include the publication of information: Attorney General for England and Wales v. Brandon Book Publishers Ltd [1986] IR 597. The right to communicate (Article 40.3) was also a part of the panoply of rights in the bundle of rights for consideration. None of these rights in consideration are absolute. Where is there are competing rights the court should give a mutually harmonious application. If that is not possible the hierarchy of rights should be considered both as between the conflicting rights and the general welfare of society: People v. Shaw [1982] IR 1 at page 56.
23. Clarke J in Independent Newspapers (Ireland) Ltd. v Anderson [2006] 3 IR 341, summarised the applicable rules in criminal trials as encompassing both statutory intervention based on Article 34.1 and rights that otherwise need to be protected in criminal trials. His summary at paragraph 14 refers thus:
Therefore it would appear that orders restricting the reporting of proceedings in court can only be made where:-
1. There is an express legislative provision to that effect; and
2. in the event that the relevant legislative provision contains a discretion, the court is satisfied that to have the case heard in public would fall short of doing justice; or
3. in the event that there is no express legislative provision the court is satisfied that
(a) there is a real risk of an unfair trial if the order is not made; and
(b) the damage which would result from not making an order would not be capable of being remedied by the trial judge either by appropriate directions to the jury or otherwise.
24. See also Doe and Doe v The Revenue Commissioners [2008] 3 IR 328. The principles thus stated are not to be confined to criminal trials. It is clear that competing rights can also arise in civil cases. As a matter of logic, the existence of competing rights in the Constitution, such as the right to the integrity of a court process or the right to litigate, as part of the “special and limited cases as may be prescribed by law” can require the courts to circumscribe either access to proceedings or reporting or both. It is clearly not enough, however, that a party may be severely embarrassed by the kind of case that they bring or even the revelation of a medical condition of a most distressing kind; Roe v. The Blood Transfusion Service Board [1996] 3 IR 67. Nor is the assertion of confidence, as opposed to a legally recognised privilege against disclosure such as legal professional privilege, enough. Rights that go beyond privacy and which are such as to undermine the very nature of access to the courts through rendering such litigation impossible should there be no restrictions; or where the right threatened without anonymity is superior to the high value which the Constitution places on the administration of justice in public.
25. It follows that Article 34.1 requires that proceedings in court be open to the public and this entails the attendance of print and broadcast media as part of the scrutiny which judicial conduct and judicial decisions are subject to in a democratic society. The media are entitled to issue, and perform a public service in circulating, fair and accurate reports of litigation. In exceptional cases, for good reasons that take account of the sensitivities of particular kinds of litigation, recognising that without privacy within court proceedings people would be inhibited to such a degree that the right to litigate would be strongly threatened, the Oireachtas is entitled to require that court proceedings be private. In terms of the protection of litigants from public scrutiny, there are degrees. Of these the strongest is, firstly, an in camera, or private, hearing where only the parties, their lawyers and their witnesses may attend together with such directly interested persons as the court permits. An in camera hearing will nonetheless result in a judicial decision and if this is in written form it should be circulated and may be published in such a form that the issues and decision may be reported but not any name or fact that will identify the parties. An in camera hearing may, secondly, be legislated for so as to allow the attendance of accredited members of the press and other media in order to enable proper reporting on behalf of the public even though the public are not to be admitted. The anonymity of the parties is preserved in any report or discussion outside the context of the proceedings. By statute, a lesser form of the protection of the privacy of proceedings, thirdly, involves the doors of the court remaining open to the public but requires that any report of what occurs during the proceedings to be anonymous as to the identities of the parties. Exceptions to the requirement of public hearings under Article 34.1 are ordinarily brought into operation through legislation; to which the courts will give effect in the degree of protection that the terms thereof require. Where, however, the courts consider that there is a legitimate and overriding public interest in the ongoing scrutiny of in camera proceedings, members of the print or broadcast media may be admitted to hearings in controlled circumstances which preserve the anonymity and privacy of litigants, where this is demonstrably possible, while upholding the integrity of their right to litigate. Such decisions are necessarily rare. They arise from the duty of the courts to uphold the special and limited nature of any exception to the requirement for public hearings. Where discretion is given in legislation to allow an in camera hearing, any decision by a court in favour of restricting public access or reporting must be limited to such cases, or such portions of cases, that involve the legitimate interests that are targeted by the legislation and where the failure to restrict the hearing would mean that the administration of justice would be undermined. Where legislation requires anonymity for particular kinds of litigants, that requirement does not need any additional scrutiny: court reports are to be redacted of names and any other fact that might reasonably lead to the identification of parties.
26. In the overall conduct of proceedings, the courts are required under the Constitution to pursue the aim of public hearings provided for in Article 34.1 and are also obliged to have regard to the other rights that may be thus affected. These include the right to litigate and the right to privacy. These rights are provided for by law under the terms of the Constitution itself. Since privacy is a broad right that encompasses situations from embarrassment to business confidence to professional secrecy, it has to be recognised that the preponderance of court cases are a source of stress and of sensitivity to litigants. Those who come to court and seek any restriction, due to their right to litigate, on the admission of the public or the untrammelled reporting of the facts and the identity of those involved will need to go considerably beyond merely arguing privacy in urging an exception under Article 34.1. It is only if the right asserted results, as a matter of proven fact, in undermining the entitlement to litigate due to a threat to life or safety or where the nature of the aspect of the case sought to be restricted means that if the court does not intervene the litigation will be practically impossible, or futile, that there should be any restriction on the open nature of access to the courts. Even there, in the absence of express legislative requirements, any restriction should be as limited as the protection of these rights necessarily demands; targeting particular pieces of testimony rather than an entire hearing, unless this is necessary, and favouring restrictions on anonymity over a completely closed hearing, unless this is essential.
This legislation
27. Under the statutory scheme in question, an in camera hearing of judicial review proceedings is not provided for in asylum cases. Instead, the extent of restriction under Article 34.1 is provided for in section 19 of the Refugee Act 1996, as amended by section 11(1)(m) of the Immigration Act 1999 and section 7(k) of the Immigration Act 2003:
(1) The Commissioner, the Board, the Tribunal, the Minister, the Minister for Foreign Affairs and their respective officers shall take all practicable steps to ensure that the identity of applicants [for refugee status] is kept confidential.
(2) Subject to sections 9(15) and 26, no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast without the consent of that person.
28. Section 26 is about an annual report to the Houses of the Oireachtas and section 9(15) concerns leave to land of a person already restricted by an exclusion order. Neither requires the public disclosure of the name of any applicant for refugee status. Neither of these exclusions are relevant to this issue. It follows from the approach of the courts to this issue that a restriction, such as that in section 19 of the Act of 1996, should be given as narrow an interpretation as its wording requires consistent with Article 34.1. In that regard, the definition of who is an applicant for refugee status is surprisingly wide. The definition section is unlimited as to time or as to result. Section 1(1) provides:
“applicant” means a person who has made an application for a declaration under section 8;
29. Insofar as relevant, section 8 merely provides that people at the frontiers of the State, or in the State, may apply for a declaration of refugee status and that upon such application and subsequent investigation a recommendation may be made that, under other provisions of the Act, a person may be declared to be a refugee. So, once Mrs B, or Mr A or Ms C has made an application claiming to be a refugee, on a literal construction of the legislation, they are thereafter an applicant. It may be argued that the end of that process with failure to achieve a recommendation of refugee status, as described above, ends their status as an applicant for refugee status. That might be the logical construction, absent the definition in section 1(1): but the clear terms of that definition mean that the status of applicant and the consequent restriction on publication of any identifying features such as name or address or particular circumstances unique to their identity is prohibited. Where a person applies for judicial review of a decision of the Refugee Appeals Tribunal, then notwithstanding that their application for refugee status has failed, they remain at that point a person who has “made an application for a declaration under section 8” of the Act of 1996. That status subsumes for all subsequent appeals and for all subsequent litigation. It follows from the statutory analysis conducted above, that a person who has applied for subsidiary protection will first have applied for, or perhaps under any new legislative or administrative arrangements will apply at the same time for, refugee status. Such a person is, and always is, a person to whom the restriction against publication of identity set out in section 19 of the Act of 1996 applies. This is not a case where section 5 of the Interpretation Act 2005 would require the courts to avoid a construction that “on a literal interpretation would be absurd or would fail to reflect the plain intention of … the Oireachtas”. In legislating in this way, the Oireachtas must be thought to have had good reason to provide that anyone who applies for refugee status, no matter how apparently outlandish or incredible the grounds put forward, or no matter whether the person has thought the better of it and withdrawn the application, should retain anonymity as to anything to do with the fact that they had applied, notwithstanding any subsequent litigation in public as to the validity of refusal. The plain and unambiguous result of the wording is, clearly, that once a person has applied for refugee status that they retain anonymity with regard to any litigation relevant thereto in perpetuity. Should there be unrelated litigation, such as a factory accident, that protection remains and, while the tort case may be reported normally, any mention of any prior failed application for refugee status may not be reported publicly.
30. There is therefore no necessity to call in aid any matter subsequent to any investigation before the Refugee Applications Commissioner or the Refugee Appeals Tribunal, anything other than section 19 of the Act of 1996. Any judicial review touching upon that, or any injunction application concerning deportation, which concerns a person who has once applied for refugee status, must preserve the anonymity of the litigant. Where questions of deportation in consequence of overstaying a tourist or student visa may arise, and where that person has not then applied for refugee status, the protection of section 19 of the Act of 1996 does not apply. Necessarily, any argument as to the protection of rights which might result in any restriction on a full public hearing and reporting of litigation will fall to be decided under the non-statutory principles previously alluded to in this judgment.
Result
31. In the result, I would dismiss this appeal. Since the applicant and her mother have applied for refugee status, albeit unsuccessfully, they remain entitled in this judgment and in any report of these court proceedings to anonymity under section 19 of the Refugee Act 1996.
DF (called Desmond on this appeal) v Commissioner of An Garda Síochána
[2015] IESC 44
Judgment of Mr Justice Charleton delivered on Friday the 15th day of May 2015
1. This appeal raises two issues: firstly, when does a plaintiff have an entitlement to trial by jury where multiple torts are pleaded in respect of an arrest incident; and, secondly, when does a party to proceedings have a statutory entitlement to anonymity based on embarrassment arising from of a medical condition. The appeal is from two judgments of Hogan J in the High Court: DF v Garda Commissioner & Others [2013] IEHC 5, as to the jury trial issue; and DF v Garda Commissioner & Others (No 2) [2013] IEHC 312, as to the anonymity issue. On this appeal the plaintiff appellant will have the assumed name of “Desmond”. The defendant respondents will be referred to as “the State”. There have been now three written judgments related to this case in the High Court. The third relates to the viability of constitutional torts alongside civil wrongs defined at common law; DF v Garda Commissioner & Others (No 3) [2014] IEHC 213 and is not part of this appeal. Counsel for Desmond has complained of being subjected to a multitude of procedural motions from the State. While it is understandable that those drafting a plenary summons and a statement of claim would wish, in aid of a plaintiff, to include all relevant causes of action, the result of pleading multiple and diverse apparent causes of action may be that the opposing side requires to interrogate these. That approach to pleading can obfuscate the core issue in a case.
The incident and the pleadings
2. The plaintiff/appellant Desmond suffers from a severe form of autism. The statement of claim, dated 6 September 2012, gives a date of birth for Desmond in 1985 and describes him as having severe learning disabilities. Both sides accept that on 24th September 2010 Desmond was arrested by gardaí, ostensibly under section 12 of the Mental Health Act 2001. This arrest is pleaded as being:
… unlawful, contrary to law, negligent and/or carried out in breach of duties (including breach of statutory duties) and in breach of the plaintiff’s Constitutional rights as well as his rights under the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the ‘European Convention’) as incorporated into Irish law by the European Convention on Human Rights Act 2003 and his rights under the Charter of Fundamental Rights of the European Union 2010.
3. It is claimed that as a result of this allegedly unlawful arrest, Desmond “suffered and sustained and continues to suffer and sustain serious injuries, to include physical and significant psychological and/or psychiatric injury, loss, damage and expense.” The pleading continues with allegations that there was handcuffing and restraint of Desmond and a failure to respond to later pleas from his mother, now deceased, to release him and that he was only released when his father arrived at the station. The actions of the gardaí are described as being “inter alia, in bad faith and/or want of reasonable care” in respect of these aspects of the detention. “Aggravated, punitive and/or exemplary damages” are sought “by virtue of the inhuman and degrading treatment” to which Desmond was allegedly subjected due to “placing him in an alien and hostile environment”. Further, it is claimed that the State acted in a negligent manner consequent upon a formal complaint to the Garda Síochána Ombudsman Commission and that, in so doing, Desmond’s entitlement under the Constitution to privacy and to family life was breached and rights under the European Convention were also infringed. Particulars of negligence are pleaded “to include breach of statutory duties on the part of the defendants, their servants or agents”. The prayer for relief follows on from the particulars of the claim. This seeks:
1. a declaration that the arrest was unlawful
2. a declaration that the detention was unlawful
3. damages from false imprisonment
4. damages for assault, battery and trespass to the person
5. damages for personal injury, loss damage and expense and psychiatric injury
6. damages for negligence and breach of duties of a statutory kind
7. damages from breach of the plaintiff’s Constitutional rights to liberty, bodily integrity and privacy
8. damages for failure to defendant vindicates these rights and to protect the plaintiff from unjust attack
9. damages for breach of the plaintiff’s rights under the European Convention on Human Rights Act 2003 “to include, inter alia, the rights to liberty, to private and family life and the right not to be subjected to inhuman and degrading treatment”
10. damages for breach of Articles 3.1, 4, 6 and 7 of the Charter of Fundamental Rights of the European Union
11. aggravated, punitive or exemplary damages
12. such further and/or other relief as the court thinks fit
13. interest pursuant to statute
14. costs
4. By reciting these claimed reliefs, it is not to be in any way taken that it is accepted that any such wrong exists as a matter of law. The State defence, delivered on 28 September 2012, awaits proof of the plaintiff’s date of birth and any particulars related to his disability. The defence set out a factual narrative. It asserts that prior to the arrest Desmond allegedly chased two young women with a stick, causing them some distress. Following on a complaint, it is said, gardaí arrived at the scene to find Desmond swinging a stick. On attempting to speak to him, the State claims, the gardaí realised that there was a disability but decided that section 12 of the Mental Health Act 2001 applied and took him into custody on the basis that he was “a person suffering from a mental disorder such that there was a serious likelihood of the plaintiff causing immediate and serious harm to himself or to other persons”. It is pleaded that care was taken under the relevant statutory provision to contact a medical practitioner. A different view to the statement of claim is given as to the facts related to custody. The defence denies that there was a breach of the torts, duties, constitutional rights and convention rights asserted on behalf of Desmond.
5. The incident was simple: the core issue is whether there was a lawful arrest and a lawful detention. It is really about whether Desmond was unlawfully arrested. When gardaí arrest someone they usually place them in a squad car or use reasonable force to usher them into a Garda station or a cell. That involves unwanted touching. Hence false arrest and intentional trespass to the person, assault, are connected torts. Apart from that, a subsidiary issue may arise on the pleadings in this case as to whether the statutory mechanism for dealing with complaints was not followed by the State defendants and as to whether, as a matter of law, this gives rise to an entitlement to damages.
Jury trial in civil cases
6. The trial judge reasoned that, as a matter of law, false imprisonment was a tort which required to be tried by a judge without a jury. It was the role of the judge, Hogan J held, to decide whether an imprisonment was false, and therefore tortious. He further decided that once those decisions had been made by the trial judge that the jury could proceed to assess damages. Whether an arrest is legally justified or not is a matter of law, the trial judge reasoned. This is correct but such a decision is also squarely based on fact. After an analysis of the relevant authorities, at paragraph 39 of his judgment, the trial judge stated:
All of this means is that the legal issues in the trial – whether the arrest and detention was lawful, whether the defendants were negligent and so forth – will be exclusively matters for the trial judge to determine. This also means that the issue of any declaratory relief in relation to the validity of the arrest and detention will be exclusively a matter for the trial judge to determine. All other matters (including the question of damages in respect of all claims, should this arise) remain, in principle, at any rate, matters for the jury.
7. In making that ruling, the trial judge was particularly influenced by the relevant provisions of the Rules of the Superior Courts. This emerges, in particular, from his conclusion on this issue at paragraph 40:
It follows from the foregoing that the plaintiff is entitled to jury trial in respect of the claims contained in the general endorsement of claim. I will, however, direct pursuant to O. 36, r. 7 that all issues touching on concerning the legality of the arrest and detention of the plaintiff on 24th of September, 2010, by members of An Garda Síochána (including the claims from negligence and breach of duty) are to be determined by the trial judge alone, with the remaining issues to be determined, subject to appropriate directions of the trial judge, by the jury.
8. On this appeal, counsel for Desmond argue that this ruling undermines the traditional approach to the role of judge and jury in a civil case. They claim also that a plaintiff has an entitlement to jury trial, meaning that the jury tries the case. Every question of law, counsel assert, is capable of being reduced to issues of fact which the jury will answer and in respect of which, if the answers are positive, they may proceed to assess damages. There is nothing novel about a jury deciding as a matter of fact that a person has been wrongly arrested, counsel for Desmond urge, in respect of alleged shoplifting or because a police power was claimed to have been improperly used. Such decisions have been tried without difficulty heretofore, it is claimed. On the other hand, counsel for the State seek to uphold the ruling of the trial judge.
9. With the passing of the Supreme Court of Judicature Act (Ireland), 1877 the then extant right to jury trial was preserved for civil actions, meaning Queen’s Bench, as opposed to Chancery causes. Section 48 of the Act of 1877 provides that:
… nothing in this Act, or in any rule made under its provisions, shall take away or prejudice the right of any party to any action to have questions of fact tried by a jury in such cases as might heretofore of right have so required, nor upon any trial before a jury to have the issues for trial by jury submitted and left by the Judge to the jury before whom the same shall come for trial, with a proper and complete direction to the jury upon the law and as to the evidence applicable to such issues …
10. In the consequent Rules of the Supreme Court (Ireland), 1891 the elements of procedure relevant to this issue were set out under Order XXXVI at numerals 3, 4 and 5 thus:
3. All causes or matters assigned by the Principle Act to the Chancery Division, and all other causes are matters which the parties are not entitled as of right to have tried with the jury, shall be tried with a Judge without a jury, unless the Court or a Judge shall otherwise order.
4. In all cases not within the preceding rule, the parties serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried without or with the jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within four days from the service of ordinary notice of trial, within two days from the service of short notice of trial, within such extended time as the Court or a Judge may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.
5. The Court or a Judge may, if it shall appear desirable, direct trial without a jury of any question or issue of fact, or party of fact and party of law, arising in any cause or matter which previously to the passing of the principle Act could, without any consent of the parties, have been tried without a jury, and such trial may if so ordered by the Court or a Judge, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.
11. The Rules of the Superior Courts of 1986 still follow some of these 1891 provisions in Order 36. It may be commented, however, that the entitlement of a judge to try a jury issue alone in rule 7 fits in a most confusing manner in the context in which it now appears in the modern text. Because of its lack of utility, whether retaining this rule as worthwhile is to be doubted. The modern text reads thus since 1986:
5. All causes or matters, which the parties are not entitled as of right to have tried with a jury, shall be tried by a Judge without a jury, unless the court shall otherwise order.
6. In all cases not within rule 5, the parties serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried with or without a jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within fourteen days from the service of notice of trial, or within such time as the Court may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.
7. The court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which, without any consent of parties, can be tried without a jury, and such trial may, if so ordered by the Court, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.
12. Under Article 38.5 of the Constitution, the only right to trial by jury is in respect of non-minor criminal offences, in other words serious crimes. There is no guarantee under the Constitution of jury trial in respect of any form of civil procedure. Any entitlement, in that regard, is entirely statutory. In many instances, and certainly as to the ancient common-law civil wrongs, tort law follows definitions which are very similar to the elements of criminal offences. Relevant to this case, false imprisonment consists of elements in both tort law and crime which are interchangeable. A similar comment might be made in relation to the allegations of assault and battery; but more recently assault has come to mean, or has been defined by statute as, a physical intrusion on the person of another without consent; leaving aside issues as to when a person can so consent. Experience has shown that juries have had no difficulty in deciding whether or not sufficient proof exists that the tort of false imprisonment has probably been inflicted on a plaintiff. Similarly, quite difficult questions of law would also be applied by juries in criminal cases in order to reach a verdict in an indictment for false imprisonment.
13. In respect of civil cases, the traditional approach as to the division of responsibilities between judge and jury has always been for a judge to decide as a matter of law what questions should be put to a jury and then to instruct the jury as to the applicable law. This has consistently provided sufficient guidance for juries. They decide the facts in such a way that their answers to questions encapsulate the elements of the tort which has been tried before them. Thus, the legal function of the judge, in the absence of the jury, is to consider, with counsel if necessary, how questions in a civil jury trial may best be framed. At the end of the trial, the jury is addressed by counsel on both sides and is then charged as to the law by the trial judge. The jury then retires to consider the answers to the questions posed. In a civil case these answers take the form of its verdict.
14. Were there to be an issue in this case as to whether Desmond was or was not brought under arrest to the Garda station, supposing that the defence had denied that fact, the first question for the jury would be: was the plaintiff arrested on the occasion in question? Since that is not an issue in the case, it appears that the other factual elements which are disputed may simply be put by the trial judge to the jury in the form of numbered questions. It is not possible to offer any guidance, much less make a decision, as to what these might be, but looming large is the question as to whether there was information upon which the gardaí might reasonably accept the reports made to them; whether that information coupled with the behaviour of Desmond when they arrived at the scene was such whereby they reasonably concluded that he was a person suffering from a mental disorder such that there was a serious likelihood of the plaintiff causing immediate and serious harm to himself or to other persons. The reality of this case is that the gardaí arrested him either in accordance with the legal power or not. These are matters of fact. If the answer to those questions were in the affirmative, damages would not be assessed because the arrest would be lawful. It would appear that were the answer to the jury questions in the negative as to the foundation for the arrest, the jury would go on to assess damages.
15. Issues of law arise on the pleadings which do not give rise to a right to jury trial. These are, firstly, in respect of the alleged wrong of the State in respect of complaints made in the aftermath of the release of Desmond and, secondly, in respect of the elements of the constitutional torts which are claimed to be integral to the case by counsel on behalf of Desmond in order to vindicate his rights to liberty, bodily integrity and privacy. There is no claim that section 12 of the Mental Health Act 2001 infringes the Constitution.
16. Added to the pleas of false imprisonment and assault have been novel constitutional torts. There is no basis in statute whereby such torts, should they exist at all, may be tried by a jury. The legal issue of whether such torts exist or whether this case is in reality one about false imprisonment is a matter of law for the judge. Those torts, if they exist at all, could not be ones covered by any statutory entitlement to trial by jury for civil wrongs preserved by the Act of 1877, since these did not exist prior to 1937. It is thus clear that no right to trial by jury exists for constitutional torts.
17. Secondly, there are the common law remedies, the primary one here being based on an alleged false imprisonment, involving as it does physical restraint; hence trespass to the person or, in other words, assault. Since the Act of 1877, the entitlement to jury trial was preserved through section 94 of the Courts of Justice Act 1924. That entitlement, however, has since been severely curtailed: reduced to a very small category of actions in the High Court through the Courts Act 1988. Section 1 of the Act of 1988 abolishes trial by jury for actions “claiming damages in respect of personal injuries caused by negligence, nuisance or breach of duty”. Similarly excluded from trial by civil jury are claims under section 48 of the Civil Liability Act 1961 and actions arising from section 18 of the Air Navigation and Transport Act 1936, as amended. Included in the abolition of civil jury trial are actions in which “damages are claimed both in respect of personal injuries… and in respect of another matter” and damages claims “other than [for] personal injuries”. Death is, for these statutory purposes, a personal injury which does not carry the entitlement to a civil jury trial. Jury actions are not available, further, where the claim arises “directly or indirectly from an act or omission that also resulted in personal injuries”. An unqualified summary of the reform would be that personal injury actions, which up to 1988 were grist to the mill in legal practice before juries, were now to be tried by a judge alone. To this statutory reform, however, there is a saver. Section 1(3) provides that the removal of the entitlement to civil jury trial is not to apply to:
(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court … that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespassed the person or both … in respect of that act or omission, or
(c) a question of fact or an issue arising in the action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespassed to the person or both, as the case may be, in respect of the actor omission concerned.
18. Clearly, actions for false imprisonment and assault are within the province of a jury trial in the High Court. Joining other causes of action to false imprisonment or intentional trespass to the person, assault, may preserve the entitlement to jury trial but only where there is one act or omission at issue in the trial, consisting in terms of the external facts of an assault or of false imprisonment, or both, and the subsidiary torts are allegedly based on that assault or on that false imprisonment. An example would be where it is alleged that as well as an action for deprivation of liberty taking place contrary to the statutory defence offered by a defendant, that the application of the power of arrest was negligent: though here it must be added that this may be a more than unhelpful conflation of separate torts. This is not to state that any such pleading is possible. As to whether adding allegations of other torts to false imprisonment and assault is reasonable having regard to the circumstances determines the balance as to whether the result should be a trial by a judge sitting alone or a trial by a judge sitting with a jury. The reform in section 1 of the Act of 1988 is not to be subverted. This is a matter of assessment by the trial judge as to where, in substance, the nature of the claim lies. What is clear is that the Oireachtas decided that issues of false imprisonment, which are predominantly cases brought by citizens against the State for alleged wrongful arrest by gardaí, and assault cases, which may include such cases or in more recent times have involved allegations of sexual violence, should be tried by a judge with a jury. It is only if the joinder of other torts or causes of action takes the substance and nature of the case away from those core jury-trial torts that a trial should take place with a judge sitting alone.
19. In Sheridan v Kelly [2006] 1 IR 314, the plaintiff sued in respect of sexual abuse at the school which he attended in the junior cycle. In addition, claims for negligence, in failing to become aware of and prevent the abuse, and claims based upon vicarious liability of the school in respect of the same actions were included in the statement of claim. In the High Court, a trial before a judge sitting alone was ordered on the basis that the claim consisted of a personal injury action in respect of negligence. Giving the judgment of the Supreme Court, Fennelly J reversed that decision and ordered a civil jury trial. While the action was one for intentional trespass to the person and for negligence, despite a plea that the was a failure to have in place procedures or measures appropriate for the supervision of teachers, a classic negligence claim, the essence of the plaintiff’s claim was that he had been unlawfully touched by one of his teachers. Further, the claims of assault and of negligence arose out of the same alleged act or omission, the statutory test. At page 319 of the report, Fennelly J rejected the argument on behalf of the defendants in favour of a trial by judge alone and stated:
I do not think that any of these matters take this case outside the scope of subs. (3)(b). It is clear that the core of the plaintiff’s claim is that he was sexually assaulted by the first defendant. Everything alleged can be traced back to that key allegation. Insofar as the claim is simply based on alleged vicarious liability, there is full correspondence between the damages alleged to flow from the acts of the two defendants. However, the subsection allows a plaintiff, in certain cases, and provided he claims damages as a result of one of the two specified causes of action, namely “false imprisonment or intentional trespass to the person,” or both also to seek jury trial where he pleads that he has suffered damages caused by, for example, negligence. The subsection requires, however, that these two causes of action be linked by a claim that the damages arose “in respect of the same act or omission.” The focus is on the damages and the relevant act or omission which causes them. The same act may give rise to a claim under different legal headings. Acts giving rise to a breach of contract may also, depending on the factual context, constitute negligence or trespass. The subsection does not require that the damages be identical. They may be “claimed in addition, or as an alternative, to the other damages claimed.”
In the present case, the plaintiff’s claim is that he suffered personal injury as a result of the assaults committed by the first defendant. Any act alleged against the second named defendant is claimed to have led to the same damage. I am satisfied that this claim comes within s. 1 (3)(b) of the Act of 1988. Therefore, the plaintiff is entitled to have his claim heard by a judge sitting with a jury. I would allow the appeal and substitute an order dismissing the notice of motion of the second defendant.
Nothing in this judgment affects the normal discretion of the High Court to decide whether the different issues in the case are to be tried separately or together, whether by the application of O.18, r;1 of the Rules of the Superior Courts 1986 or otherwise.
20. Were the argument of counsel for the State on this appeal to be correct, it would mean that making a core allegation of false imprisonment but pleading various other wrongs based upon the facts that consisted of that alleged wrong in the guise of different torts, the matter would be placed outside the exemption from the abolition of jury trial. That is not what the legislation provides for. No comment is made here as to the separate section dealing with the preservation of jury trial in defamation actions and the conditions thereof.
21. In addition, it was asserted by counsel for the State that Order 36 Rule 7 of the Rules of the Superior Courts entitles the trial judge to order a trial by judge alone notwithstanding that there is an entitlement pursuant to legislation for the trial to be one by a judge sitting with a jury. That argument cannot succeed. The Superior Courts Rules Committee is not entitled to overrule the provisions of the Act of 1988. That Committee does valuable work in proceedings of the courts through establishing appropriate rules in aid of the proper administration of justice. It is not a legislative body. Furthermore, it is clear that the meaning sought to be attributed to this rule by the State amounts to a misinterpretation; one that is perhaps attractive given the anomalous context in which the rule now exists. When the rule says that the “Court may, if it shall appear desirable, direct trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter” that authority is expressly directed to any action where “without any consent of parties” a trial can take place “without a jury”. Once it is decided as a matter of law that section 1(3) of the Act of 1988 applies, in other words that the action is one which carried the entitlement of a jury trial, the action ceases to be one where without the consent of the parties a trial by judge alone can take place.
Ordering anonymity
22. Article 34.1 of the Constitution makes it imperative that justice “be administered in public” except “in such special and limited cases as may be prescribed by law”. Here, it should be noted that there is a law prescribing an exception of a limited kind contained in section 27 of the Civil Law (Miscellaneous Proceedings) Act 2008. An examination of this legislation confirms that it is a smorgasbord of amendments and provisions covering such things as judicial pensions, making court rules, providing for service of proceedings, allowing assistance in court to those with disabilities, judicial service, control of solicitors and landlord and tenant law. In sum, nothing in the section to be quoted gains anything from analysis in context. There is no context relevant save for Article 34.1. Section 27 provides:
(1) Where in any civil proceedings (including such proceedings on appeal) a relevant person has a medical condition, an application may be made to the court in which the proceedings have been brought by any party to the proceedings for an order under this section prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the relevant person as a person having that condition.
(2) An application for an order under this section may be made at any stage of the proceedings.
(3) The court shall grant an order under this section only if it is satisfied that-
(a) the relevant person concerned has a medical condition,
(b) his or her identification as a person with that condition would be likely to cause undue stress to him or her, and
(c) the order would not be prejudicial to the interests of justice.
23. Subsection 4 provides for an appeal in the ordinary way. Subsection 5 allows a court to which an order is appealed to vary or revoke the order. While subsection 6 states that an application for an order may be made by a party to the proceedings, under subsection 11 this includes both a party to the proceedings and includes any person called, or proposed to be called, as a witness. While notice “to the other party or parties to the proceedings” is required under subsection 6, this need not be by notice of motion. Letters may be exchanged instead; the necessity for a motion then perhaps becoming apparent if there is no disagreement, though the decision is always that of the judge. The same subsection provides that an application for such an order is to be made “to the judge concerned in chambers.” Subsection 7 makes it a criminal offence, carrying a fine of €25,000 or prison for 3 months or both, to defy such an order and the relevant mental element is specified in subsection 8.
24. The learned trial judge held that section 27 of the Act of 2008 had to be interpreted in the light of the constitutional imperative for public access to hearings. This, Hogan J held, required a restrictive interpretation of this provision so that the full scope of Article 38.1 was not undermined. The constitutional guarantee, the trial judge reasoned, required not only that the doors of the court be open to the public and the press but that all that went on in court could be reported, most especially relevant here as to who was taking the case and who was defending it and, it follows, who were the witnesses. The trial judge was clearly influenced by the ordinary way in which courts conduct their procedure. Anonymity can be abused. In McKeogh v John Doe 1 & ors [2012] IEHC 95, a young man was wrongly identified on social media as not paying a taxi fare. He was subjected to on-line attacks on his good name by those hiding behind the confidentiality of internet service providers. But, the Oireachtas must be taken to be aware of that aspect of human nature and to be able to draw the appropriate balance. Hogan J held that anonymity was not possible in this case. The trial judge especially relied on the judgment of Laffoy J in Roe v Blood Transfusion Service Board [1996] 3 IR 67 at 71 and the decision of McCracken J in Re Ansbacher (Cayman) Ltd [2002] 2 IR 517 and ruling of Clarke J in Doe v Revenue Commissioners [2008] 3 IR 328. All of these decisions, in the absence of the express legislative exception prescribed in Article 38.1 of the Constitution, and in the particular circumstances of those cases in that context, held that anonymity could not be ordered for the litigants in those cases. Here it is different. There is legislation providing for a limited departure from a full open hearing as contemplated by Article 34.1, provided particular terms are judicially adjudicated to have been met. The Oireachtas has fulfilled its function of determining whether it is appropriate that, and in what circumstances, a party to proceedings, plaintiff or defendant, applicant or respondent, or a witness or prospective witness, is entitled to be seen by the public in court, observed by and reported on by the press but, exceptionally, is to be kept unidentified in any written judgment of the court or in media reports. This minor and exceptional departure from open reporting is possible once a series of statutory tests have been met. That is different to the exercise of a jurisdiction dependant solely on Article 34.1 which is not informed by the legislation contemplated by the Constitution. The trial judge was concerned with inequality; a situation where an anonymous person could bring proceedings but a defendant sued in respect of a civil wrong could not have the same privileged exception from the full application of a public and fully publicly reported hearing. At paragraph 33, the trial judge held as follows:
If one leaves the plaintiff’s personal tragic medical circumstances aside, it would have to be said as a general rule that it would be manifestly unfair if the accuser could advance serious charges anonymously while the accused must face the glare of publicity. There are few things worse in life than having to face the false accusation. Two thousand years of human history has shown that there is no shortage of persons willing to throw the first stone, especially if they can so in safety and with no risk to themselves. The cloak of anonymity assists that process in that it helps to foster an environment where allegations can recklessly be made against a named and publicly identifiable individual with few, if any, personal consequences. Indeed, if empirical proof of this were required, one need not go further than the facts of McKeogh itself. If Article 40.3.2 is to have any real meaning, the courts are accordingly bound to devise procedures which protect the substance an individual’s right to a good name.
25. This is an ordinary damages claim. The plaintiff appellant Desmond is accusing no one. He is making a civil claim through his testamentary guardian Maeve. In essence, he claims to have been wrongly arrested. Were it to be the case that a member of the gardaí in this case had an embarrassing medical condition, an application to restrict the publication of his or her name could be made. Similarly, that could apply to, for instance, a witness who might be a friend of the plaintiff appellant Desmond and who had a similar condition. Section 27 of the Act of 2008 is not challenged as to its constitutionality. The legislation makes a minor adjustment to the fully public nature of court proceedings under Article 34.1. As such it is to be interpreted according to its terms. The application for an order of restriction of reporting was not made in the absence of legislation: it was made because of it. In M A R A (Nigeria) (An infant suing by her mother and next friend O A) v The Minister for Justice and Equality & ors [2014] IESC 71, which postdates the High Court decision in this case, the Supreme Court considered the various decisions on Article 34.1 of the Constitution and summarised the effect of these at paragraph 25 thus:
It follows that Article 34.1 requires that proceedings in court be open to the public and this entails the attendance of print and broadcast media as part of the scrutiny which judicial conduct and judicial decisions are subject to in a democratic society. The media are entitled to issue, and perform a public service in circulating, fair and accurate reports of litigation. In exceptional cases, for good reasons that take account of the sensitivities of particular kinds of litigation, recognising that without privacy within court proceedings people would be inhibited to such a degree that the right to litigate would be strongly threatened, the Oireachtas is entitled to require that court proceedings be private. In terms of the protection of litigants from public scrutiny, there are degrees. Of these the strongest is, firstly, an in camera, or private, hearing where only the parties, their lawyers and their witnesses may attend together with such directly interested persons as the court permits. An in camera hearing will nonetheless result in a judicial decision and if this is in written form it should be circulated and may be published in such a form that the issues and decision may be reported but not any name or fact that will identify the parties. An in camera hearing may, secondly, be legislated for so as to allow the attendance of accredited members of the press and other media in order to enable proper reporting on behalf of the public even though the public are not to be admitted. The anonymity of the parties is preserved in any report or discussion outside the context of the proceedings. By statute, a lesser form of the protection of the privacy of proceedings, thirdly, involves the doors of the court remaining open to the public but requires that any report of what occurs during the proceedings to be anonymous as to the identities of the parties. Exceptions to the requirement of public hearings under Article 34.1 are ordinarily brought into operation through legislation; to which the courts will give effect in the degree of protection that the terms thereof require. Where, however, the courts consider that there is a legitimate and overriding public interest in the ongoing scrutiny of in camera proceedings, members of the print or broadcast media may be admitted to hearings in controlled circumstances which preserve the anonymity and privacy of litigants, where this is demonstrably possible, while upholding the integrity of their right to litigate. Such decisions are necessarily rare. They arise from the duty of the courts to uphold the special and limited nature of any exception to the requirement for public hearings. Where discretion is given in legislation to allow an in camera hearing, any decision by a court in favour of restricting public access or reporting must be limited to such cases, or such portions of cases, that involve the legitimate interests that are targeted by the legislation and where the failure to restrict the hearing would mean that the administration of justice would be undermined. Where legislation requires anonymity for particular kinds of litigants, that requirement does not need any additional scrutiny: court reports are to be redacted of names and any other fact that might reasonably lead to the identification of parties.
26. As is clear from the MARA case, the lesser form of legislative restriction on the fully open nature of court proceedings, namely the redaction of names on any public report in news media, does not make it necessary for a judge hearing such an application to rebalance rights or, more onerously and apparently contrary to the terms of the relevant legislation, to remove the protection of redaction from a litigant who comes within the terms of s. 27 of the Act of 2008. Only a minor diminution of a full open and fully reported hearing is involved in the application of that section and only then if the party or witness comes as a matter of fact within its terms. Such a provision in law is contemplated by Article 34.1. There is no reason why it should not be applied in accordance with its terms. Section 27 of the Act of 2008 either applies or not. The trial judge held in an earlier case that the section could apply whether the plaintiff or witness had any consciousness of embarrassment; Children’s University Hospital, Temple Street v CD [2011] 1 IR 665 where a baby was being withheld treatment because of a religious conviction of the baby’s parents.
27. On this appeal, one of the main arguments of the State has been that the level of autism suffered by Desmond is such that he would have no awareness of being in court or of his case being reported. An expert report was furnished in that regard. That expert report, while accepted by the trial judge, does not take into account the effect that reporting the name of a plaintiff or a defendant or a witness can have in a society where, globally, people can be harried and undermined by anonymous internet malice. Hogan J predicted the consequences of this by reference to the McKeogh case. As the trial judge correctly identified, Desmond needs routine, loves watching horses, guards a particular patch of ground as a task appointed by his mind and does not need people of malice being attracted to him or intruding on that space. This would be an all too unfortunate and predictable result of the publication of his name, address and medical particulars.
28. Finally, it might also be noted that the change in the law that section 27 of the Act of 2008 represents took place against a background of people being required to litigate and have their names and address reported notwithstanding that they were living dignified lives and choosing to hide, or partly conceal, debilitating and embarrassing conditions. The change brought about by the Act of 2008 has not meant that such plaintiffs or defendants or witnesses get a hearing in camera. Such a hearing is not secret. What it does mean that a much lesser form of protection may be appropriately given as a necessary concession in our society where the terms of that entitlement are met in accordance with the will of the Oireachtas.
29. Construing the section on its own terms, therefore, Desmond is a party to proceedings, he has a medical condition, namely autism, and identifying him as such is likely to subject him to undue stress. This is due to the predictable reaction of others. There is no basis for assuming that his serious and medically proven condition will not impact on the ease with which Desmond can take a case. In reality, he is under a disability. The vast majority of litigants and witnesses are not. The State also argued on this appeal that anonymity should not be granted to Desmond because more witnesses might emerge through reading the reports and volunteering to give evidence for the defence side of the case. In that respect, it is claimed that the “interests of justice” require that such an order not be made. The focus of the argument is correct. The test as set out in s.27(3)(c) requires that such an order should be “prejudicial to the interests of justice”. That does not either require or allow a recasting of the section so to take any considerations of open justice into account under Article 34.1. Reporting restrictions, it is claimed, might result in a witness being unaware of proceedings and so undermine a fair hearing. That inventive argument cannot be validly made on the pleadings in this case. On the basis of the defence, the gardaí claim to have had reports requiring their intervention. On arriving at the scene where the stick waving and chasing had, as had been reported to them, apparently taken place, they apparently reached a conclusion that they should arrest Desmond because of his mental condition and it being a danger to himself and others. The application of that power of arrest is what this case is about. The validity of those actions is to be judged according to the reports to the gardaí and their own observations. There is no danger of prejudice to justice by Desmond being named in reports of proceedings in that way instead of under his own name and address.
Structuring this case
30. This is now the fourth written judgment from the Superior Courts in this case. It is a simple case. The purpose of the courts established under the Constitution is to provide a means of access to persons who claim to have a grievance that is legally justiciable. Of the essence of that function is the identification and pursuit of core issues in a case.
31. There will be an order requiring that Desmond be not identified in the media when this case comes on for trial or in any reporting of this any other decision of the courts. His assumed name may be used instead and the place of the incident may be stated to be in the West of Ireland.
32. The time-honoured manner whereby simple questions are put by the trial judge to the jury trying a civil case and a decree is made either in favour of a plaintiff or dismissing a case consequent upon those answers should be followed. During the hearing of this appeal, the Court was told that a new statement of claim has now been delivered excluding claims in negligence, but this pleading was not seen on this appeal. Whatever its import, which cannot now be commented upon, there remain elaborate and legally complex claims that the tort of false imprisonment and assault are inadequate to protect the constitutional rights of Desmond. There further exist claims that the European Convention on Human Rights establishes other, and presumably wider, obligations that were somehow allegedly infringed. This case needs to return to what it is, in fact, about.
33. Both sides agree that this young man Desmond was arrested. The ostensible justification was based upon the report of facts which may be the subject of dispute that a jury will have to resolve. Whatever decision is reached by the jury, based upon whatever questions are put by the trial judge to the jury, will impact upon the core defence which is that section 12 of the Mental Health Act 2001 justified arrest in those circumstances. If there are wider obligations then are already defined in tort law, in respect of whatever other claims are also pleaded arising out of the same incident, these will need to be decided by the trial judge since there is no right to trial by jury in respect of these alleged torts. Once these are disposed of, the jury may be asked to decide the facts relevant to the core claim; was a power of arrest exercised in good faith by members of An Garda Síochána in within the terms of a statutory power.
Result
34. The plaintiff appellant Desmond is entitled by statute to anonymity in the trial and of any preliminary step of these proceedings and any report thereof. A jury will at that trial have to answer questions put to them, as framed by the trial judge, relating to the validity of Desmond’s arrest. Any other claimed civil wrongs under the Constitution or the European Convention on Human Rights, if these exist at all, are entirely within the decision of the trial judge.
D. v Director of Public Prosecutions
[1994] 1 ILRM 435
Finaly CJ
I have had the opportunity of reading the judgment which is about to be delivered by Egan J in this case, and I agree with the order he proposes, namely, to dismiss this appeal, and with the reasons for which he has reached that conclusion.
I wish to add two comments on matters which have arisen in the course of this appeal.
A necessary issue which arose in this case was the appropriate standard of proof which the court should require of the likelihood of an unfair trial before it would intervene. I am satisfied that, firstly, the right of an individual to a fair trial is of fundamental constitutional importance. Secondly, it is clear that the unfairness which it is suggested would occur in this case would consist of an undisclosed recollection by one or more members of the jury of the material contained in the newspaper; an association of that recollection with the trial before that person, and an undisclosed influence upon the mind of that person in regard to the question of guilt or innocence. Such a form of unfairness could not by reason of its nature be subsequently established or corrected either on appeal or by a quashing of the conviction.
The fundamental nature of the constitutional right involved and the incapacity of the court further to intervene to defend it leads, in my view, to the conclusion that the standard of proof which the court should require from the applicant in this case concerning his allegation of the likelihood of an unfair trial is that he should be required to establish that there was a real or serious risk of that occurring. Such an approach is consistent with the view taken by this Court in the different context of extradition proceedings in the case of Finucane v. McMahon [1990] 1 IR 165; [1990] ILRM 505.
With regard to the actual publication in the Sunday Tribune which was identified by the learned High Court judge as the real cause of his view that the applicant had been put at risk of being subjected to an unfair trial, it is, I think, important to point out its particular lurid features, the simplicity of identification between it and the actual trial to which the applicant would have been subjected and the number of matters extraneous to any issue arising in that trial which are contained in the article, and all of which would be highly prejudicial. I am satisfied that there is much strength in the argument submitted on behalf of the Director of Public Prosecutions on the hearing of this appeal that this Court should not disregard both the capacity of a trial judge strongly and effectively to charge a jury in a manner which would indicate to them beyond question their obligation to try the issues before them only on the evidence adduced, and the robust common sense of juries who might well ignore dramatic or sensational newspaper articles. Even though it is clear that in the interests of justice much greater vigilance should be shown by newspapers in the type of publicity which they give to crimes in which trials are still pending, it is not to be taken that every criminal trial in respect of an offence which has received significant publicity will by that fact become an unfair trial. The particular facts of this case and the form and nature of the publicity involved in it make it unusual, but make it, I am satisfied, as I have indicated, a case in which justice requires that the further trial of the applicant should be prohibited.
EGAN J:
The applicant in this case has already stood trial on two occasions on a charge that he did ‘on a date unknown between 1 April 1988 and 20 November 1988 at or near Malin in the County of Donegal on a boat off the coast thereof indecently assault’ a named female.
In the course of the first trial in the Dublin Circuit Criminal Court he was found not guilty by direction of the trial judge on ten other charges and in regard to the eleventh charge, the contents of which I have set out, the jury was discharged and a new trial was ordered.
The applicant’s re-trial on this remaining count came on for hearing on 27 and 28 July 1992 (again in the Dublin Circuit Criminal Court) and on the second day the learned trial judge discharged the jury and directed that a further trial should take place before another jury.
On the following day the learned trial judge required the editors of the Irish Times and the Irish Independent to appear before him to answer for inaccurate reporting of the trial which prompted the learned judge to discharge the jury. In the course of this hearing counsel for the DPP said in open court that as a result of the discharge of the jury ‘a patently guilty man had gone free’ but it was later stated on a broadcast that these words had been withdrawn. It can, however, be said that the case received considerable publicity.
On 5 February 1993 an order was made in the High Court by Carney J prohibiting the DPP from further prosecuting the applicant on the remaining charge and from this order an appeal has been brought to this Court by the DPP. Carney J held that, in the events which had happened, the further prosecution of the applicant had been rendered unsafe by the combination of incidents of publicity calculated to prejudice a fair trial. It is clear from the judgment that, although he based his view on the ‘combination’ of incidents of publicity which had occurred, he was most strongly influenced by the fact that the case received what he described as ‘sensational’ coverage in the Sunday Tribune of 2 August 1992. In my opinion the question as to whether or not a new trial should be permitted depends essentially on this particular coverage.
Coverage commenced with a bold headline reading ‘Rape: it began when I was eleven’ and in smaller type the words ‘Girl tells of her five-year ordeal of assaults, pregnancy, a child — and suspended sentences for three men.’ This is on the front page of the Sunday Tribune and the accompanying text consists of the young girl’s life story as told to Eamonn McCann, a journalist, and continues prominently on p. 6 with a rear-view drawing or photograph of a young girl with a child in her arms under the words ‘I kept thinking I wish I was dead’ and above the words ‘The first time I gave evidence I was only 14. I had to sit there with tears running down my face and them tearing me to pieces’.
The history of the case and details of the trials are also given in another column on p. 6 which deals with the fact that seven men had been sent for trial. The outcome of the trials in so far as six of the men were concerned is given — three were acquitted and three were given suspensory sentences. As regards the seventh man, the following is stated ‘the trial of a seventh man accused of assaulting her was halted this week and the jury discharged, after inaccuracies in newspaper reports. Judge Kieran O’Connor said these could have prejudiced the trial. The case will be reheard before a new jury’.
If a new trial had taken place shortly after the publication of this particular issue of the Sunday Tribune it would have been crystal clear to any member of the jury who had read it that the trial would be concerned with an indecent assault on the young girl described in the article and that the applicant was ‘the seventh’ man as he was the only one whose case had not been finally dealt with. There would, in my opinion, have been a very serious risk that any jurors who had read the article would not have been able to put it out of their minds even though they would have been instructed to confine their thoughts to the evidence given at the trial. The article was calculated to arouse great sympathy for the girl in question and antagonism towards anyone charged with assaulting her. It contains a good deal of matter which would be irrelevant and inadmissible, the most damaging being possibly the fact that the applicant had been charged on ten other counts originally.
It has been argued that the contents of the article which was published in August 1992 would probably have receded in the memory of anyone who read it but I cannot make any such assumption having regard to the harrowing impact it would likely have made on any reader. I am of opinion, therefore, that there is a very real risk that if the applicant were to stand trial for the third time, he would have no guarantee that such trial would be fair. I am, in any event, satisfied that it would not be proper to consider the effect of the passage of time since publication of the article and that the proper time to be considered is January 1993 which was the time scheduled for the new trial before judicial review was sought.
I would dismiss the appeal.
BLAYNEY J
(O’Flaherty J concurring): Two issues arise for determination in this appeal. The first is as to the nature of the onus of proof which an accused must discharge when he seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair. The second is as to whether the applicant has discharged that onus in the present case.
I have no difficulty with the first issue. I agree with the standard proposed by the Chief Justice in his judgment, namely, that the standard of proof which the court should require is that it should be shown that there is a real or serious risk that the trial would be unfair if it were allowed to proceed. It is the second issue which I have found far from easy to resolve.
It seems clear on the facts that the only ground on which it can be urged that the trial of the applicant would be unfair is because of an article on the front page of the Sunday Tribune on 2 August 1992. In holding that the further prosecution of the applicant had been rendered unsafe, the learned trial judge in the High Court was concerned principally with the effect that this article would have on any prospective jurors who might have read it.
The article consisted of an interview with the complainant in the case together with an account of two abortive trials which have already taken place. The first trial took place in the Circuit Court in Dublin at the end of March and the beginning of April 1992. Ten of the eleven counts against the applicant were withdrawn from the jury and a new trial was directed on the remaining count which was:
Statement of offence
Count No. 1 — indecent assault, contrary to common law, as provided for by s. 10 of the Criminal Law (Rape) Act 1981.
Particulars of offence
… D., on a date unknown between 1 April 1988 and 30 November 1988 at or near Malin in the county of Donegal, on a boat off the coast thereof, indecently assaulted X. a female.
The new trial took place on 27 and 28 July 1992. On the second day of the trial, the trial judge discharged the jury by reason of inaccurate reporting in two newspapers of the first day’s hearing. The further trial of the applicant was then set for January of this year. On 22 October 1992 the applicant obtained leave to apply for an order of prohibition by way of judicial review and on that application being made on 5 February 1993 an order of prohibition was granted by Carney J.
Having read a number of times the article in the Sunday Tribune and considered its possible effect on any juror who might have read it, I am not satisfied that it is such as to create a real risk that it would render the applicant’s trial unfair. In order to do this it would need to create a real risk of preventing the jury from giving an impartial verdict in the case. I do not believe it would have this effect, firstly, because of the nature of the article itself, and secondly, because of the deserved confidence our judicial system has in juries to act responsibly.
It was a long article, and a somewhat confused one. How much of it would any ordinary person reading it retain? And for how long? While it was entitled ‘Rape: it all began when I was eleven’, what it described is very different from the ordinary individual’s notion of rape. There was no mention of violence, intimidation or threats. Insofar as the incidents referred to amounted to rape, they did so because the complainant, being under the age of seventeen, could not in law give her consent. Since the newspapers regularly contain accounts of prosecutions for rape in which appalling violence or force has been used, I do not think that this article would have had any special impact on anyone who read it. I think rather that anyone reading it would have wondered why it had appeared on the front page of a newspaper.
I would accept nonetheless that the article would have aroused sympathy for the complainant and that while neither her name, nor the applicant’s name, is mentioned in it, it would be possible for a member of the jury who had read it to come to the conclusion that it referred to them.
The question then is, would a juror whose sympathy for the complainant had been aroused by the article, be incapable of giving an impartial verdict? I would accept that there would be a slight risk of this, but no more than there would be in any other case where there is room for sympathy for the complainant. In a criminal trial the members of the jury are made very aware of the heavy responsibility they have as the judges of the guilt or innocence of the accused. It begins with their individually taking an oath to ‘well and truly try the issue whether the accused is guilty or not guilty of the offence charged in the indictment preferred against him and a true verdict give according to the evidence’. They are then reminded by the trial judge in his charge at the end of the case that they must decide the case only on the evidence before them; that they must put out of their minds anything they may have heard or read about the case from any other source, and that they must not allow themselves to be swayed by sympathy but decide the case on the facts. What must be borne in mind also is the impact made on the jury by hearing the witnesses in the case, by having the evidence at first hand presented to them. Are they going to permit their assessment of that evidence to be influenced by a vague recollection of something they read in a newspaper some months before, particularly when to do so would be to disregard their oath and to disregard the clear directions given to them by the trial judge? In my opinion there is not a real or serious risk that they would permit themselves to be influenced in this way and accordingly I would allow this appeal and set aside the order of prohibition granted in the High Court.
DENHAM J
(O’Flaherty J concurring): This is an appeal by the Director of Public Prosecutions against an order of the High Court prohibiting the Director of Public Prosecutions from further prosecuting the applicant on a specific charge of indecent assault.
The facts have been fully set out by Egan J. The applicant has already been found not guilty by direction of the trial judge on ten other charges and in regard to an eleventh, the charge in issue herein, the jury was discharged and a new trial ordered.
On the second day of the re-trial the learned trial judge discharged the jury and directed that a further trial take place before another jury.
While the discharge of the second jury was related to inaccurate reporting of the trial in respect of which defence counsel complained, and as a result of which two newspaper editors were required to answer for inaccurate reporting, and whereas during that hearing remarks were made by counsel for the Director of Public Prosecutions which were apparently reported and then withdrawn, the issue before this Court relates to a news story in the Sunday Tribune .
I am in agreement with Egan J that the question for decision is as to whether or not a new trial should be permitted as a result of the coverage in the Sunday Tribune on 2 August 1992.
The coverage in the newspaper has been set out by Egan J. It was a strong story from the victim’s point of view. However, neither the victim nor the accused are named, nor is the exact location of the offence alleged against the applicant specifically identified, although reference is made to statements in which she claimed she had been sexually assaulted in a list of six places, one of which is similar to the charge.
I agree with the Chief Justice and Egan J that the test is whether there is a real risk that the applicant by reason of the coverage by the Sunday Tribune on 2 August 1992 could not obtain a fair trial.
The applicant’s constitutional rights must be protected. Under the Constitution Article 38.1 provides:
No person shall be tried on any criminal charge save in due course of law.
The unenumerated rights of Article 40.3 incorporate a right to fairness of procedures. Fair procedures incorporate the requirement of trial by a jury unprejudiced by pre-trial publicity. The applicant is entitled to a jury capable of concluding a fair determination of facts on the facts as presented at the trial.
The applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of constitutional rights it is a superior right.
A court must give some consideration to the community’s right to have this alleged crime prosecuted in the usual way. However, on the hierarchy of constitutional rights there is no doubt that the applicant’s right to fair procedures is superior to the community’s right to prosecute.
If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused’s right to a fair trial being balanced detrimentally against the community’s right to have alleged crimes prosecuted.
What is before the court in this case is the matter of a single article — albeit on p. 1 and an inside page — in a Sunday newspaper. It is a story from the victim’s point of view, and the question is — is there a real risk that it has prejudiced a potential jury against the accused who is neither named nor identified personally. As to whether the article was in contempt of court is not in issue.
This is not a case of massive national coverage — of media saturation. It is not a case where a story has been told and retold on all forms of media, repeatedly, over any length of time, to the nation. That is not an issue in this case.
If this trial were to proceed the applicant would be before the court on the *443 single charge of indecent assault. The trial would be in Dublin. The usual procedural rules would apply whereby the judge would tell the jurors that if they had any connection with any parties to the case, or were prejudiced in any way, they should stand aside. Jurors would take their oath usually in the following terms:
I swear by Almighty God that I will well and truly try the issue whether the accused is guilty or not guilty of the offence charged in the indictment preferred against him and a true verdict give according to the evidence.
The jurors would be told during the trial that they should find facts on evidence presented to the court, and on such evidence alone. At the end of the trial the trial judge would charge them inter alia that they were to find the facts, they were the sole judge of facts, and that the decision on facts must be based on evidence before the court.
I am not satisfied that there is a real risk that a jury cannot be found which is not prejudiced against the accused because of the article in the Sunday Tribune .
To so hold incorporates the belief that at least one juror:
(i) will have read the article,
(ii) will remember the article,
(iii) will connect the applicant to the article,
(iv) will be prejudiced against the applicant because of the article,
(v) will not comply with their oath as jurors, and
(vi) will not comply with the charge of the trial judge.
Also, it would impute to the juror a belief that he/she believes all they read in an interview and article in a newspaper. While accepting the danger of a general atmosphere of prejudice I consider that it is wrong to impute naivety to jurors.
I do not consider that by this publication there is established a real risk that the applicant would not get a fair trial.
I would allow the appeal. By so doing this does not limit in any way the trial judge’s role to ensure fair procedures.
R.T. v Director of the Central Mental Hospital
[1995] 2 ILRM 354
Costello P
Introduction
The applicant had been a patient in St Brendan’s Hospital, Dublin, but was transferred to the Central Mental Hospital, Dundrum by order of the Minister for Health of 3 August 1978. This order was made pursuant to the provisions of s. 207 (2)(c) of the Mental Treatment Act 1945, the section which is impugned in these proceedings. Since that date, that is for the past 16 years, the applicant has been detained in the Central Mental Hospital. These proceedings were instituted under Article 40.4.1° of the Constitution. The applicant claims that his detention is unlawful and seeks an order for his release. It is claimed firstly that he is not being legally detained and, in the alternative, if his detention is legal, then the section purporting to justify it is unconstitutional. By order of 23 October 1994 the director of the Central Mental Hospital was directed to certify in writing the grounds of his detention. This has been done and the Attorney General has been given notice of the proceedings and has argued the validity of the impugned section.
I propose in this judgment to use the term ‘person of unsound mind’ to refer to persons suffering from mental illness, mental handicap, or personality disorder who may be subject to involuntary detention under the provisions of the 1945 Act. I propose to use the word ‘patient’ to describe a person who is subject to a reception order under the Act and is detained in a mental hospital or the Central Mental Hospital, and the words ‘temporary patient’ in respect of persons (like the applicant) who were the subject of temporary reception orders made under the Act.
The law
An understanding of the issues will be helped if I firstly outline the relevant statutory provisions. These are as follows:
(a) There was an institution called a ‘Central Criminal Lunatic Asylum’ established by the Central Criminal Lunatic Asylum (Ireland) Act 1845. This institution is now known as the Central Mental Hospital (Health Mental Services Act 1961, s. 39) and is now administered by the Eastern Health Board (Health Act 1970, s. 44).
(b) A ‘chargeable patient’ is a patient who is receiving mental hospital assistance and who is unable to provide the whole of the cost of such assistance (s. 3 of Mental Treatment Act 1945). A ‘chargeable patient reception order’ means a reception order made in respect of a ‘chargeable patient’ under Chapter 1 of Part XIV of the 1945 Act.
(c) A ‘temporary chargeable patient reception order’ means such an order made under s. 184 of the 1945 Act. The applicant in this case was the subject of a temporary chargeable patient reception order.
(d) Where it is desired to have a person received and detained as ‘a person of unsound mind’ and as a chargeable patient, application in the prescribed form for the reception and detention of the person is made under s. 162 of the 1945 Act. If such an order is made then the mental hospital authority may receive and take charge of the person to whom the order relates and detain him ‘until his removal or discharge by proper authority or his death’ (s. 172(1)).
(e) Where it is desired to have a person received and detained as a temporary patient and as a chargeable patient an application may be made for a temporary chargeable patient reception order to have the person received and detained as a temporary patient. The application is to be accompanied by a certificate by the authorised medical officer which states, inter alia , that the person is suffering from mental illness and requires for his recovery not more than six months suitable treatment and is unfit on account of his mental state for treatment as a voluntary patient (ss. 184(1) and 184(4) of the 1945 Act). Where a temporary chargeable patient reception order is made then the specified persons (including the persons in charge of approved institutions mentioned in the relevant reception order) ‘may receive and take charge of the person to whom the order relates and detain him until the expiration of a period of six months from the date on which the order is made or his earlier removal or discharge by proper authority or death’ (s. 186(1)(b)).
(f) Where the chief medical officer becomes of opinion that a person detained in the institution under a temporary chargeable patient reception order will not have recovered on the expiration of the period during which he may be detained he may, by endorsement on the order, extend the period for a further period not exceeding six months or, by a series of endorsements on the order, extend the period by further periods none of which shall exceed six months and the aggregate of which shall not exceed eighteen months (s. 189(1)(a) of the Act of 1945 inserted by s. 18 of the Mental Treatment Act 1961). Two such extensions were made in this case.
(g) Where a person detained in an institution maintained by a mental hospital authority is charged with an indictable offence before a judge of the District Court and evidence is given which in the opinion of the judge constitutes prima facie evidence that such person has committed the offence and that he would if placed on trial be unfit to plead then the district judge ‘shall by order certify that such person is suitable for transfer to the Dundrum Central Criminal Lunatic Asylum’. Where such an order is made then the Minister for Health shall require the Inspector of Mental Hospitals to visit the patient and make a report on his mental condition. After consideration of the report ‘the minister may, if he so thinks fit, by order direct and authorise the transfer of such person to the Dundrum Central Criminal Lunatic Asylum’ (see s. 207(1) and (2) of the 1945 Act). This section was operated in this case and is at the centre of the dispute between the parties.
(h) Where a person is transferred to the Central Mental Hospital then he is ‘detained therein until he is sent to a district mental hospital or other institution or is discharged under this section or his death’ (see ss. 207(2)(d) of the 1945 Act inserted by s. 25 of the 1961 Act).
(i) The minister may by order direct and authorise the sending back of a person transferred to the Central Mental Hospital under subs. (2) to the institution from which he was transferred (see s. 207(3) of the 1945 Act). This has not happened in this case. The applicant was transferred to the Central Mental Hospital by order of the minister of 3 August 1978 and has since been there.
(j) A statutory duty is imposed on mental hospital authorities for each mental hospital district to provide for persons ordinarily resident in their district ‘with treatment, maintenance, advice or service’ necessitated by mental illness and who are unable to provide the cost themselves (s. 19 of the 1945 Act). A duty to provide accommodation in mental hospitals is also imposed (ss. 20 and 21).
(k) The functions imposed on local authorities under the 1945 Act are now the responsibilities of health boards (see s. 6 of the Health Act 1970).
(l) Health (Mental Services) Act 1981. The 1981 Act was enacted on 30 May 1981. It provided (s. 2) that it should come into operation on such day or days as may be fixed by order or orders of the Minister for Health. No orders were made under s. 2 and no part of the Act has been brought into operation. I was referred by counsel to the Green Paper on Mental Health issued by the Department of Health in June 1992 in which it is explained (paragraph 16.13) that the Act was not brought into force because its provisions were overtaken by developments in international law, and because the ‘thrust’ of the Act had been superseded by developments in the psychiatric services. In the light of certain of the submissions made in this case (to be examined later) some of its provisions are relevant. In particular:
(i) The Act (s. 7) repealed the Act of 1945 (with the exception of Part VIII dealing with superannuation matters). Thus it was intended that the s. 207 procedures by which the applicant herein was transferred to the Central Mental Hospital would be repealed when the relevant sections of the Act are brought into operation.
(ii) New procedures for transfer to the Central Mental Hospital are contained in ss. 30 and 31 of the Act. By s. 30 the Central Mental Hospital is deemed to be a ‘special psychiatric centre’. By s. 31 a person detained in a mental hospital which is a district or registered psychiatric centre within the meaning of the Act can only be transferred to the Central Mental Hospital by a direction of the review board established under the Act consisting of three persons (ss. 3 and 37).
(iii) Notice of the direction must be given ( inter alia ) to the person who originally applied to have the patient detained for treatment and provision is made for an appeal to the High Court to discharge the direction (s. 31(5)(a)(b)(c)).
(m) The Constitution . The present proceedings have been brought pursuant to Article 40.4 of the Constitution. This provides that upon a complaint being made to a judge of the High Court alleging that a person is being unlawfully detained the judge ‘shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the court … and to certify in writing the grounds of his detention’. The High Court shall order the release of the person from detention ‘unless satisfied that he is being detained in accordance with the law’.
Article 40.4.3° provides that where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under the section and the court ‘is satisfied that such person is being detained in accordance with the law but that such law is invalid having regard to the provisions of this Constitution’ then the court shall refer the question of the validity of the law to the Supreme Court by way of case stated. The court is also empowered to allow the applicant to be at liberty on such bail and subject to such conditions as it shall fix until the Supreme Court has determined the question so referred.
Article 40.4.3° is relevant in this case because of the applicant’s alternative contention that if he is presently detained in accordance with the law then that law is invalid having regard to the provisions of the Constitution.
The facts
(1) The applicant was admitted into St Brendan’s Hospital, Dublin as a temporary chargeable patient under the Act of 1945 by order made on 16 August 1977. The order was made pursuant to s. 184 of the Act of 1945. By two endorsements on the reception order the period of ‘treatment’ was extended firstly to 15 August 1978 and then to 15 February 1979.
(2) Whilst in St Brendan’s Hospital the applicant was charged with a criminal offence of causing actual bodily harm to a patient in the hospital on or about 13 April 1978 contrary to s. 47 of the Offences Against the Persons Act 1861. At a hearing of the District Court on 4 July 1978 a justice of the District Court certified, pursuant to s. 207(1)(b) of the Act of 1945, that the evidence against the applicant constituted prima facie evidence that he had committed the offence alleged and that if placed on trial he would be unfit to plead. The district justice certified that the applicant was suitable for transfer to the Central Mental Hospital.
(3) By order dated 3 August 1978 the Minister for Health having considered a report of the Inspector of Mental Hospitals concerning the applicant made an order under s. 207 of the Act of 1945 directing the transfer of the applicant from St Brendan’s Hospital to the Central Mental Hospital, Dundrum. Pursuant to this order the applicant was transferred to the Central Mental Hospital on 9 August 1978. He has been detained there since that date. The respondent claims that the order of the minister constitutes the basis upon which the Central Mental Hospital presently detains the applicant in its custody.
(4) Correspondence made available shows that a consultation was held early in 1990 concerning the transfer of the applicant back to St Brendan’s. Following this the medical director of St Brendan’s wrote to the medical director of the Central Mental Hospital on 8 February 1990 stating, inter alia :
As you know I have discussed the placement of Mr T. [full name given in original] with Dr Charlie Smyth in November 1989 and again last week when I was in the Central Mental Hospital for a meeting. The position is that there simply is no room in the disturbed units here and we are having great difficulty managing beds for our acute patients because of the number of long stay patients in units 8A and 8B.
I have also spoken to Dr A. McGuinness and in view of the difficulties in managing Mr T. when he was an in-patient here, Dr McGuinness would be very reluctant to have him back for further treatment here.
I accept fully your point about the rehabilitation of such patients and I feel that your service should have a facility to provide a rehabilitation and ongoing service for such patients following their discharge from the Central Mental Hospital.
(5) On 29 November 1990 the Inspector of Mental Hospitals, Dr Dermot Walsh, wrote to the clinical director of St Brendan’s about the applicant in which he stated, inter alia :
R. has shown gradual improvement over the years and any aggressive tendencies he may have had have gradually subsided and he has been enjoying parole from Dundrum to Dublin since 1983. For almost two years now his behaviour has been impeccable. It now seems impossible to proceed with his rehabilitation any further because of lack of residential accommodation outside Dundrum. His home which was originally in D. has broken up as only his mother remains and she is living in accommodation in S. Although R. visits her very frequently and she is very supportive of him there is no accommodation for him there. As a consequence of this lack of accommodation R. remains in Dundrum. He has now in effect served 12 years for an offence, which if it had come before the criminal courts and had been dealt with by them, would have merited at most eighteen months imprisonment. It really is distressing that he should be treated in this fashion simply because of lack of hostel accommodation. Can you do anything to help?
(6) By letter of 20 March 1991 an officer in the Department of Health, Mr Hanniffy, wrote to the Inspector of Mental Hospitals following an enquiry concerning the operation of a transfer under s. 207 of the Act of 1945 to the ‘parent hospital’. The letter referred to the section and went on:
I feel that when you are satisfied a patient should be returned you should ask Charlie Smyth to inform the parent hospital that if they do not agree to accept a patient back then a ministerial order will be sought — and needless to say this order will be made if you recommend it.
(7) The applicant consulted a solicitor about his continued detention in the Central Mental Hospital in 1994. His solicitor, Mr Matthews, was informed by Dr Charles Smyth, the medical director of the Central Mental Hospital, that the offence with which the plaintiff had been charged in 1978 was that of an assault. He was also informed by Dr Smyth that St Brendan’s Hospital was unwilling to receive the applicant and that the procedures in s. 207(3) of the 1945 Act had not been invoked. Dr Smyth wrote to the applicant’s solicitor on 11 May 1994 stating:
I wish to confirm that while Mr T. continues to be a person of unsound mind, he is not a danger to the community, and has been of stable disposition since April 1992. He does not require the high security which this hospital provides. He would be a suitable candidate for supervised hostel accommodation, and I would certainly recommend that he be discharged into such accommodation at the earliest opportunity.
(8) By letter of 20 June 1994 Mr Matthews wrote to the chief executive officer of the Eastern Health Board requesting the transfer of the applicant to St Brendan’s with a direction that the authorities in the hospital provide for his removal to hostel accommodation. This letter was acknowledged on 21 June but thereafter no written reply to it was made. On 23 July Dr Angela Mohan, the medical director of St Brendan’s Hospital wrote to the applicant in reply to a letter which he had written on 6 July stating that ‘we are making plans for your early transfer back to St Brendan’s hospital’ as soon as the problems referred to in the letter had been addressed.
At the beginning of October 1994 Mr Matthews notified the board of his intention to make an application for an order of habeas corpus on behalf of the applicant. Some communication by telephone followed thereafter in which Mr Matthews was informed that the applicant would be transferred to St Brendan’s and then assessed for the purpose of discharging him to hostel accommodation. As nothing was done to effect a transfer an application under Article 40.4 of the Constitution was made and by order of 23 November 1994 it was ordered that the respondent certify in writing the grounds of the applicant’s detention.
(9) By affidavit of 9 December 1994 the director of the Central Mental Hospital certified the grounds for the detention of the applicant in the Central Mental Hospital. The validity of the present detention is claimed to rest on the order of the Minister for Health of 3 August 1978.
(10) The respondent’s case was supported by an affidavit of Dr Angela Mohan sworn on 2 December 1994. Dr Mohan agrees with the medical diagnosis of the plaintiff made by Dr Charles Smyth. She states that she is willing to admit the applicant into her care at St Brendan’s Hospital but that the best interests of the applicant require that this process should be on a staged basis at a rate of progress which the applicant can manage and subject to periodic review by both her and Dr Smyth. She agrees with the professional opinion of Dr Smyth in his letter of 11 May 1994 insofar as it ‘clearly indicates that the applicant continues to be a person of unsound mind’ but that steps can be taken to see if the applicant can in a measured and protected way be reintegrated into the community. In a supplementary affidavit of 15 January 1995 Dr Mohan states that at the end of December she notified the applicant that he was due to be transferred to St Brendan’s as a fulltime in-patient but that she has now been informed by the medical staff of the Central Mental Hospital that the applicant is refusing to be transferred to St Brendan’s Hospital and is ‘now demanding that he be immediately discharged from any form of hospital care’. She expressed the opinion that it was not in the interests of the applicant to be immediately discharged into the community as he now requests.
(11) By notice of 7 December 1994 given pursuant to O.60 r.1 the Attorney General was given notice that it was to be contended on behalf of the applicant that ‘insofar as his detention in the Central Mental Hospital has been or continues to be in accordance with law, such law is invalid having regard to the provisions of the Constitution of Ireland’. The Attorney General has been represented at the hearing.
The first issue
Is the applicant’s present detention in the Central Mental Hospital lawful?
First, it was urged on the applicant’s behalf that his present detention is unlawful because the minister’s order of 3 August 1978 merely directed the transfer of the applicant to the Central Mental Hospital and not his detention there; that the only order for his detention was the temporary chargeable order; that assuming that it had been validly extended the right to detain him ceased when the extension expired. This argument, however, ignores the effect of s. 207(2)(d) of the 1945 Act which provides that where a patient has been transferred to the Central Mental Hospital by ministerial order then ‘he may be detained therein until he is sent to a district mental hospital or other institution or discharged under this section or his death’. This provision, it seems to me, gives authority for a patient’s detention in the Central Mental Hospital and his detention there is rendered lawful notwithstanding the expiration of the earlier temporary chargeable patient’s order. Its extension by endorsement after the applicant’s transfer may or may not have been valid; the point, however, is irrelevant because the order relating to the applicant’s detention in St Brendan’s cannot have any bearing on the validity of his detention in the Central Mental Hospital if s. 207(2)(d) is constitutionally valid.
I should refer briefly to the decision of the Supreme Court in Croke v. Smith 1994 No. 150, 14 July 1994, a case in which a patient in St Ita’s escaped, assaulted the nurses who came to bring him back to hospital, and who, having been arrested by the gardaí and returned to St Ita’s was then transferred to the Central Mental Hospital by order made under s. 208 (not s. 207) of the 1945 Act. This section permits a hospital authority to transfer a patient to a ‘hospital’ or other institution when the patient requires ‘treatment’. The Supreme Court held that the transfer order was valid as the Central Mental Hospital was a ‘hospital’ within the meaning of the section and that he would receive ‘treatment’ there. It also held that the applicant’s continued detention in the Central Mental Hospital became unlawful because the applicant had been received into St Ita’s on foot of a six month’s temporary chargeable order which had not been renewed and which expired after six months at which time detention in the Central Mental Hospital became illegal. There is an obvious difference between the provisions of s. 207(2)(d) and s. 208(5) of the Act and counsel has not relied on Croke in support of the argument that his continued detention in the Central Mental Hospital is illegal. S. 207(2)(d) provides that ‘a person transferred under s. 207 on being transferred shall notwithstanding any other provision of the Act be detained therein’ until sent to a district mental hospital or discharged or until death. On the other hand, s. 208(5) provides that a person removed to a hospital under the section shall be kept there for as long as it is necessary for his treatment and then taken back to the hospital from which he was transferred.
Secondly, it was urged that the applicant’s detention in the Central Mental Hospital had become unlawful because he had been, and was currently, subject to what was termed ‘intolerable’ conditions. In support of this argument I was referred to two English authorities Middleweek v. Chief Constable of Merseyside [1990] 3 All ER 662 and R. v. Deputy Governor of Parkhurst Prison, ex parte Hague [1991] 3 All ER 733. The conditions which were stated to be ‘intolerable’ were (a) the fact that had the applicant been convicted of the offence with which he was charged he would have only been detained in the Central Mental Hospital for at most eighteen months, whereas his detention without conviction had been for more than sixteen years, and (b), the fact that he had been detained in the Central Mental Hospital for over two years after he had recovered sufficiently from his illness to justify his transfer out of that hospital.
I do not think that the cases to which I have referred support the applicant’s submissions. In the later case it was made clear that a prisoner who alleges that his conditions are ‘intolerable’ may have a remedy against his custodian for example for damages for negligence, for assault, for misfeasance where malice is established and for an application for termination of such conditions by judicial review. But an otherwise lawful imprisonment is not rendered unlawful by reason only of the conditions of detention. Furthermore the ‘conditions’ referred to in those cases were physical conditions which an applicant found ‘intolerable’, not wrongful administrative actions leading to illegal detention as alleged in this case.
I must hold therefore that the applicant’s detention is lawful. His claim for release, therefore, will fail unless it is shown that s. 207 of the Mental Treatment Act 1945 is unconstitutional.
The second issue
Is s. 207 unconstitutional?
The applicant’s constitutional right to liberty is central to this case. It is to be found in Article 40.4.1°. This article provides that no citizen shall be deprived of his personal liberty save in accordance with law. This does not mean that the Oireachtas is free to enact any legislation it wishes trenching on the guaranteed right. It is, however, well established that legislative restrictions on the citizen’s liberty must be in accordance with the fundamental norms of the legal order postulated by the Constitution. (See King v. Attorney General [1981] IR 233). These fundamental norms are manifold — that with which this case is concerned is the constitutional requirement that the State should defend and vindicate the citizen’s personal rights, and these include the right to liberty. So, if it can be shown that a law fails to defend and vindicate the right to liberty it infringes a fundamental norm of the legal order postulated by the Constitution and will be invalid as trenching on Article 40.4.1° rights.
The right to liberty is of course not an absolute right and its exercise is in fact and in many different ways restricted by perfectly valid laws, both common law and statutory. Adjudication on a challenge to restrictive laws will be helped by considering the object and justification advanced in support of the law. It is obvious that if the object of the law is to punish criminal behaviour different considerations will apply than when the impugned law has a totally different object, such as the welfare of the person whose liberty is restricted.
The reasons why the 1945 Act deprives persons suffering from mental disorder of their liberty are perfectly clear. It does so for a number of different and perhaps overlapping reasons — in order to provide for their care and treatment, for their own safety, and for the safety of others. Its object is essentially benign. But this objective does not justify any restriction designed to further it. On the contrary, the State’s duty to protect the citizen’s rights becomes more exacting in the case of weak and vulnerable citizens, such as those suffering from mental disorder. So, it seems to me that the constitutional imperative to which I have referred requires the Oireachtas to be particularly astute when depriving persons suffering from mental disorder of their liberty and that it should ensure that such legislation should contain adequate safeguards against abuse and error in the interests of those whose welfare the legislation is designed to support. And in considering such safeguards regard should be had to the standards set by the Recommendations and Conventions of International Organisations of which this country is a member.
I return now to s. 207. It will be recalled that this section permits the Minister for Health to make a transfer order by which a patient in a mental hospital is transferred to the Central Mental Hospital, after the patient has been charged with an offence and brought before a district judge who having decided that there is a prima facie case that the patient committed the offence and that he is unfit to plead certifies that he is suitable for transfer to the Central Mental Hospital. The patient is then examined by the inspector who reports to the minister. The minister may then order his transfer.
The provisions of this section have been criticised. It has been stated:
(a) The person does not have a proper trial for the offence or on the question of his or her fitness to plead;
(b) The judge, if satisfied that there is prima facie evidence that the person has committed the offence, has no option but to grant the certificate;
(c) No criteria are set out for the minister’s decision;
(d) There is no limit to the length of the person’s detention in the Central Mental Hospital;
(e) It is not clear whether the charge goes into abeyance once the certificate is signed or whether it can later be reviewed.
These criticisms are not mine (although I adopt them) but are taken from the Department of Health’s Green Paper (paragraph 23.13) in which the department expressed the opinion that the section was ‘seriously defective’. I would add the following comments:
(1) The section may have been enacted to deal with a situation in which a patient may have committed a crime before the reception order was made. But it may also be operated in relation to offences allegedly committed by patients after the reception order was made. The section therefore enables a patient to be prosecuted for an offence who, because of mental illness may have lacked the mens rea required to support a conviction. In such circumstances to prosecute might well amount to an abuse of the criminal process.
(2) If the hospital authorities were under the belief (as the judgment in Croke shows was the belief of the director of the Central Mental Hospital) that a disruptive patient could not be the subject of a transfer under s. 208 (because the Central Mental Hospital did not provide ‘treatment’ within the meaning of that section) then s. 207 could be used by the hospital authorities solely for the purpose of obtaining a transfer of the patient to the Central Mental Hospital and not for the purpose of making him amenable to the criminal law. This, again, would be an abuse of the criminal processes.
(3) The procedures in the section are based on a patent illogicality. It does not follow that because a patient may be unfit to plead if placed on trial that he is suitable for transfer to the Central Mental Hospital. The district judge is required by statute to certify something which may be quite untrue.
(4) There are no safeguards to protect the patient against a possible error in the operation of the section. The only professional opinion on the question of the suitability of the Central Mental Hospital is that of the inspector. There are no procedures for the review of his opinion.
(5) There are serious defects not only in the transfer procedures but also in the provision which enables indefinite detention in the Central Mental Hospital. There is no practical way in which a transferred patient can procure his re-transfer or his liberty or have his continued detention reviewed.
These defects in the statutory procedures have serious legal consequences as they directly impinge on the constitutional right to liberty of temporary patients. Such patients have a right to their liberty, at most, eighteen months after the reception order which restricted their liberty was made. If transferred under the section then they may be detained there lawfully after the expiration of that period for an unlimited time which, as this case eloquently demonstrates, may extend over many years. The defects in the section are such that there are no adequate safeguards against abuse or error both in the making of the transfer order, and in the continuance of the indefinite detention which is permitted by the section. These defects, not only mean that the section falls far short of internationally accepted standards but, in my opinion, render the section unconstitutional because they mean that the State has failed adequately to protect the right to liberty of temporary patients. The best is the enemy of the good. The 1981 reforms which would have remedied the defects were not brought into force because more thorough reforms were being considered (paragraph 16.13 of the Green Paper). The prolonged search for excellence extending now for over 14 years has had most serious consequences for the applicant herein.
In the light of these conclusions I need express no opinion as to whether the section infringes other articles of the Constitution.
The order
Article 40.4.3° of the Constitution provides that when the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf and the court is satisfied that such person is being detained in accordance with law but that such law is invalid having regard to the provisions of the Constitution then it should refer the question of the validity of the law to the Supreme Court by way of case stated. In this case, by agreement of the applicant, the High Court did not make an order that the applicant be produced before the High Court but instead made an order requiring the director to certify in writing the grounds of his detention.
The constitutional provision requiring the making of an order for the production of the applicant is only an enabling one, particularly when the applicant (as happened in this case) is actually in court (see State (Rogers) v. Galvin [1983] IR 249). I am satisfied therefore that in order to operate the provisions relating to the stating of a case it is not necessary for me to make a formal order for the applicant’s production. I will therefore refer the question as to whether s. 207 is invalid having regard to Article 40.4.1° of the Constitution to the Supreme Court. In the light of the medical evidence I do not think that I can presently admit the applicant to bail but I will give liberty to apply.
Finally, I think I should express the opinion that on the evidence before me the applicant’s best interests may well be served by a practical rather than a legal solution to the difficulties he is facing. Whatever view the Supreme Court takes of the section the end result is likely to be the re-transfer of the applicant to St Brendan’s and the making of a new reception order. If it can be explained to the applicant that success in these proceedings is not likely to result immediately in a transfer to a hostel it should be possible to make the arrangements which are now available for his immediate transfer to St Brendan’s and his continued rehabilitation there.
The West Cork Bar Association v Courts Service
The West Cork Bar Association, Colette Mccarthy, Veronica Neville, Maria O’Donovan and Anthony Coomey, Paul O’Sullivan and Liam Crowley v The Courts Service
2014 23JR
High Court
8 July 2016
unreported
[2016] IEHC 389
Mr. Justice Noonan
July 08, 2016
JUDGMENT
Introduction
1. This case concerns the proposed closure of Skibbereen Court House. The first applicant (“WCBA”) is an unincorporated association of solicitors practising in the west Cork area and the second to seventh applicants are solicitors practising there. In these proceedings, the applicants challenge an order made by the respondent on 21st October, 2013, approving the closure of the Court House. The applicants seek to quash that decision.
Background facts
2. The respondent (“The Courts Service”) was established by the provisions of the Courts Service Act 1998 (“the Act”) which gives it responsibility, inter alia, for managing courthouses and court venues throughout the State. The respondent is funded entirely by the Exchequer and in the wake of the economic collapse which commenced in 2008, has seen very significant reductions in its budget. The respondent operates under a statutory imperative which requires it to have regard to the resources available and the need to secure the most beneficial, effective and efficient use of such resources (s. 13(2)(a) of the Act).
3. Against this background, the Building Committee, a sub-committee of the Board of the Courts Service (“the Board”), at a meeting on 10th October, 2011, established a Venue Review Committee (“VRC”). The VRC’s mandate was to carry out a review of all court venues throughout the State. The purpose of this review appears to have been to assist in the assessment of how economies and efficiencies could be introduced in regard to court venues in the light of the budgetary constraints imposed. The VRC met on a number of occasions and presented a draft report to the Building Committee on 17th April, 2012. The draft report was reviewed by the Building Committee on that date and again 12th June, 2012, and as a result a revised report was prepared by the VRC which was considered by the Building Committee on 25th June, 2012. The VRC report embodied a proposed methodology for identifying court venues which might be considered for closure, there being 41 such throughout the State.
4. It proposed a grading or marking system for each venue and a consultation and review process to be followed in respect of each court venue proposed for closure. Eight criteria were identified as appropriate for assessment and points were allocated under each criterion with a possible total of 52 being available. It was proposed that any venue scoring 23 points or less should be considered for a more detailed evaluation. Although Bantry, Bandon and Macroom all received less than 23 points, it was felt that they should be omitted from more detailed evaluation for geographical and logistic reasons. Other venues in west Cork scoring 23 points or less included Kinsale, Clonakilty and Skibbereen. The Building Committee recommended that the Board approve the VRC report and the Board duly did so at its meeting on the 25th June, 2012.
5. On 3rd September, 2012, the Courts Service wrote to WCBA enclosing a copy of the methodology for court venue review setting out the criteria and the points awarded. The letter indicated that the Courts Service would now proceed with a detailed evaluation of each venue identified for potential closure and would engage in a local consultation process with local court users and other stakeholders. The letter concluded by inviting comments or contributions. WCBA responded by letter of 11th October, 2012, expressing concern over the prospect of further court closures in the area. This was followed by a detailed written submission on 26th October, 2012. On 22nd November, 2012, the Courts Service wrote to WCBA saying that there may have been a misunderstanding that Skibbereen and Clonakilty were to be closed into Cork whereas in fact the proposal was for the business from Skibbereen to be transferred to Bantry. WCBA responded on 11th December, 2012, stating that there had been no misunderstanding and in fact the original proposal had been to close Skibbereen into Cork rather than Bantry.
6. On 24th January, 2013, WCBA furnished an addendum submission directed towards the closure of Skibbereen into Bantry rather than Cork. Following the receipt of all relevant submissions from interested parties, the Building Committee met on 16th May, 2013, and decided to recommend closure of the Skibbereen Court House. On 17th May, 2013, WCBA wrote to the Courts Service drawing attention to the impending increase in the jurisdiction of the District Court which it was felt would impact on the business transacted in Skibbereen Court House significantly. On 21st May, 2013, the Courts Service wrote to WCBA informing it of the Building Committee’s decision to recommend closure of the Courthouse.
7. On an unspecified date in May, 2013, but presumably prior to the meeting of the Building Committee on 16th May, 2013, a document entitled “Venue Review West Cork Venues” designated report 9/2013 was prepared by Mr. John Coyle, head of Circuit and District Court Operations for the Courts Service. This report analysed the case for closing the three venues in question and this analysis included a consideration of the cost saving involved. In that regard, the report said in relation to Skibbereen:
“The analysis examined the court profile for a three month period (six court sittings) and then extrapolated the outputs from the analysis over a twelve month period. The total saving for the Courts Service would amount to €11,643 while the total cross justice Exchequer saving would amount to €15,783 if the District Court area of Skibbereen were amalgamated with the District Court area of Clonakilty.”
8. The higher figure quoted appears to have been taken from an earlier internal Courts Service document entitled “Cost Analysis Report – Closure of Skibbereen” which is dated simply 2012 and states on the final page that the net saving to the Exchequer of closing Skibbereen will amount to an estimated €15,783 over twelve months. Report 9/2013 had a number of appendices attached to it. Appendix A, entitled “West Cork Venue Review” contains what is described as a detailed assessment and business case prepared by Mr. Coyle in respect of the three venues including Skibbereen. The following is stated at para. 6.2 of that document:
“Indicative figures (2011 figures) produced by Circuit and District Operations Directorate in respect of a decision, if taken, to move the Skibbereen Court sittings to Bantry or Clonakilty, which looked at the impact of such a move on T&S costs for the Gardaí, Courts Service and Legal Aid as well as looking at the maintenance savings enclosing the venue, indicate a possible overall net saving €1.3k per annum if the court sitting moved to Bantry and a net saving of €12.2k if the sittings moved to Clonakilty. Given that there would be costs associated with additional sittings in Bantry and / or Clonakilty it is estimated that the overall net saving would be in the region of €1k per annum if the court moved to Bantry.
Again an analysis of cost from the same source under the same criteria if the venue closed into Clonakilty show a potential net saving of in excess of €12k per annum less the cost of the additional sittings in Clonakilty estimated at €4k per annum.”
Thus this report was estimating a net saving of €8,000 per annum although it does not specify whether this is an Exchequer or a Courts Service saving.
9. Appendix B attached to report 9/2013 comprises a document entitled “Review of West Cork Venues” and is stated to be comments on the submissions of WCBA. Paragraph 3.2 of this document refers to the Courts Service in considering the closure of any venue undertaking a standard cost analysis report. This is presumably a reference to the cost analysis report above referred to. The document then goes on to say:
“The following is the outcome of this analysis in relation to the venues in west Cork currently under consideration for closure.
Skibbereen to Clonakilty
Net saving to the Courts Service of €11,643.
Net saving to the Exchequer of €13,168.”
10. It will be seen therefore that whilst the figure specified for the net saving to the Courts Service is the same as that appearing in the Cost Analysis Report, the figure for the net saving to the Exchequer is different. There is no indication of where or how this figure was obtained.
11. It thus emerges that report 9/2013 and its appendices give three different figures for apparently the same thing being respectively €15,783, €8,000 and €13,168.
12. A further report entitled “District Court Variation Order” and designated report no. 20/2013/7 was prepared on the 19th June, 2013, by the Chief Executive Officer of the Courts Service. This report had attached to it appendix 1 which was report 9/2013 above referred to with its own appendices containing reference to the three different figures. Report 20/2013/7 with its appendices was circulated to the members of the Board a week prior to a meeting of the Board which took place on 1st July, 2013. At that meeting, the Board approved the closure of Kinsale Court House to Bandon but deferred a decision on Skibbereen to a further meeting of the Board to be held on 21st October, 2013, pending clarification of an issue that had been raised with regard to the refurbishment of Clonakilty Court House. On 4th July, 2013, the Courts Service wrote to WCBA advising of the Board’s decision.
13. The Board met again on 21st October, 2013, and an extract from the minutes of that meeting is in the following terms:
“District Court variation order on the amalgamation of the District Court area of Skibbereen and the District Court area of Clonakilty (report no. 29/2013).
The Chief Executive presented the report as circulated. The matter had been considered by the Board at its meeting on 1st July, 2013, when the Board, having fully considered the report before it and all submissions received, expressed concern over the condition of Clonakilty Court House and the progress of the refurbishment of the Courthouse. The Board decided to defer the decision in relation to the amalgamation of the District Court area of Skibbereen with the District Court area of Clonakilty until the next meeting when the Chief Executive would advise on the status of the refurbishment plans for Clonakilty. The Chief Executive advised the meeting that the funding had been made available to carry out all the refurbishment works required to bring Clonakilty Courthouse up to an acceptable standard and the works will be carried out as quickly as possible. The Board considered the matter and decided to approve the amalgamation of Skibbereen District Court area with Clonakilty District Court area, to be implemented only on completion of all the necessary refurbishment works at Clonakilty Courthouse.”
14. The Courts Service wrote to WCBA on 24th October, 2013, informing it of the decision of the Board.
Functions of the Courts Service
15. The functions of the Courts Service are defined in the Act as including to “provide, manage and maintain court buildings” (s. 5(d)).Section 6(j) confers on the Courts Service the power to designate court venues. Section 13 provides inter alia as follows:
“(2) The Board, in the performance of its functions, shall have regard to—
(a) the resources of the Service for the purposes of such performance and the need to secure the most beneficial, effective and efficient use of such resources, and
(b) any policy or objective of the Government or a Minister of the Government insofar as it may affect or relate to the functions of the Service.
(3) The Minister may inform the Board of any policy or objective of the Government or a Minister of the Government referred to in subsection (2)(b).”
The Applicants’ Case
16. Although a large number of issues were canvassed in the course of the hearing, I think these effectively distilled down to three. First, the applicants say that the Board’s decision is effectively contaminated by the errors of fact in relation to the alleged savings to be gained from a closure of Skibbereen Courthouse. Three different figures were put before the Board and two at least must be wrong. Such a fundamental error requires the decision to be set aside.
17. Secondly, complaint is made that the Board failed to give any reasons for its decision. Closely allied to this ground is the submission that because the constitutional right of access to justice is at issue in this matter, there has to be clear justification for the decision arrived at which ought to be subject to close scrutiny. Thirdly, it was submitted that there is no clear statutory power contained in the Act which empowers the respondent to close a functioning court house and accordingly the decision is ultra vires.
18. In response, the respondent contends that the decision in question ought to be viewed as allocative in nature and not susceptible to judicial review. The respondent had no duty to give reasons but if it did, adequate reasons were in fact given. Any errors of fact that may have arisen were not material and cost saving was only one of a range of issues considered by the respondent. Even if there was such error, it could not give rise to a right to judicial review. The respondent has a clear statutory power under the Act to close courthouses by virtue of the sections above referred to and as found by this Court in Kennedy & Ors. v. The Courts Service [2014] IEHC 259.
Availability of Judicial Review
19. The closing of Skibbereen Courthouse is undoubtedly a serious matter for those affected by it and it was not disputed that the constitutional right of access to justice is in play. Indeed it is expressly considered in the various reports to which I have referred and which were before the Board when it took its decision. It featured heavily in the applicants’ submissions to the respondent in relation to the proposal.
20. In Clinton v. An Bord Pleanála [2007] 4 I.R. 701, the Supreme Court considered an application for judicial review in respect of a compulsory purchase order. In the course of delivering the unanimous judgment of a five member Supreme Court, Geoghegan J., in dealing with the availability of judicial review where constitutional rights are in issue, said the following (at p. 723):
“[46.] I think it appropriate to make the following further observation. It is axiomatic that the making and confirming of a compulsory purchase order to acquire a person’s land entails an invasion of his constitutionally protected property rights. The power conferred on an administrative body such as a local authority or An Bord Pleanála to compulsorily acquire land must be exercised in accordance with the requirements of the Constitution, including respecting the property rights of the affected landowner (see East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317). Any decisions of such bodies are subject to judicial review. It would insufficiently protect constitutional rights if the court, hearing the judicial review application, merely had to be satisfied that the decision was not irrational or was not contrary to fundamental reason and common sense.”
21. It seems to me therefore that the decision in the present case, representing as it does, a limitation on the constitutional right of access to justice of a significant number of persons, cannot be said to be beyond the scope of judicial review. However, I readily accept that decisions essentially relating to the allocation of limited resources as between competing interests will only be subject to judicial review in relatively rare cases. It is of course not the Court’s function to consider the appropriateness of a decision or whether it was right or wrong. Many of the applicants’ submissions focused on attributing too little weight to some factors and too much to others but these are not, in my view, matters to which the Court can have regard because to do so would be to trespass upon the merits which is not the function of judicial review.
Judicial Review and Mistake of Fact
22. In E. v. Secretary of State for the Home Department [2004] QB 1044, the Court of Appeal for England and Wales considered the availability of mistake of fact as a ground for seeking judicial review. Delivering the Court’s judgment, Carnwath L.J. said (at p. 1070):
“[63.] In our view, the Criminal Injuries Compensation Board case [1999] 2 AC 330 points the way to a separate ground of review, based on the principle of fairness. It is true that Lord Slynn distinguished between ‘ignorance of fact’ and ‘unfairness’ as grounds of review. However, we doubt if there is a real distinction. The decision turned, not on issues of fault or lack of fault on either side; it was sufficient that ‘objectively’ there was unfairness. On analysis, the ‘unfairness’ arose from the combination of five factors: (i) an erroneous impression created by a mistake as to, or ignorance of, a relevant fact (the availability of reliable evidence to support her case); (ii) the fact was ‘established’, in the sense that, if attention had been drawn to the point, the correct position could have been shown by objective and uncontentious evidence; (iii) the claimant could not fairly be held responsible for the error; (iv) although there was no duty on the Board itself, or the police, to do the claimant’s work of proving her case, all the participants had a shared interest in co-operating to achieve the correct result; (v) the mistaken impression played a material part in the reasoning.
[64.] If that is the correct analysis, then it provides a convincing explanation of the cases where decisions have been set aside on grounds of mistake of fact.”
23. In R (March) v Secretary of State for Health [2010] EWHC 765 (Admin), the applicant was one of thousands of haemophiliacs infected by contaminated blood products administered by the NHS in the UK during the 1970s and 1980s. It had never been established in court or by public inquiry that anyone was negligent or at fault. The Government proposed an ex gratia scheme of funding to compensate the victims. The compensation scheme considered recommendations made in the Archer Inquiry Report that payments should be at least equivalent to those payable under a similar scheme applying in Ireland. The Government proposed to introduce a scheme of payments at a lower level than the Irish scheme on the basis that in Ireland, there had been a finding of fault before the scheme was introduced. This was in fact incorrect. The applicant sought to quash the Government’s decision on the basis of a material mistake of fact. The High Court set aside the decision. In the course of his judgment, Holman J. said:
“[50.] I wish to make absolutely clear that the allocation of resources is entirely a matter for the government. They have said, in effect, that they cannot afford to pay more; and that is entirely a matter for them, as to which I neither express, nor have, any opinion or comment whatsoever.
[51.] They also say, in effect, that a relevant consideration in deciding the allocation of resources is the advice to them and their view as to whether or not, or to what extent, the government have been at fault or are vulnerable to a civil claim. That seems to me to be a consideration which the government are entitled, if they think fit, to take into account.
[52.] But they have been faced also with a specific, reasoned recommendation, which they have rejected, of comparability (or equivalence) with Ireland. When pressed by Dr. Iddon (and by the claimant in his letter to which Dora East replied) as to why they have rejected comparability, they have not merely repeated: because we cannot afford it. They have given a reason which, in my view, does contain an error and does not withstand scrutiny. They continue to regard the Irish system as based on fault and to be a reaction to Finlay whereas, as the brief clearly states, it was already based on compensation.
[53.] I am satisfied that the government’s approach to recommendation 6 (h) has been, and remains, infected by an error. Miss Whipple argued that even if there was error, the error was not material because (i) the government have already proposed to pay the most they can afford to pay; and (ii) Mrs Webb says at paragraph 61 of her statement that ‘the recommendation that a system similar to the Irish system should be adopted was not considered in detail and was not fully …. investigated.’ However the minister did not give non-affordability as the reason for rejecting recommendation 6(h) but, rather, the supposed distinction with Ireland; and it was that supposed distinction which led the government not even to consider recommendation 6(h) ‘in detail’ or fully to investigate it: Mrs Webb refers in the immediately preceding paragraph, paragraph 60, to ‘the very different situation in Ireland.’ In my view, the error is material because a different decision might (I stress, might) have been made if the government had correctly focussed on, and grappled with, the compassionate basis of Irish payments, when considering in particular the passage at internal pages 90 – 94 of Archer which underpins recommendation 6 (h).”
24. The law in this jurisdiction is to similar effect as shown in the judgment of Hogan J. in Efe v. Minister for Justice [2011] 2 I.R. 798, where he said (at p. 819):
“To this might be added the observation that the courts will also quash a decision which is vitiated by material error of fact: see, e.g., Hill v. Criminal Injuries Compensation Tribunal [1990] I.L.R.M. 36; A.B.-M. v. Minister for Justice, Equality and Law Reform, (Unreported, O’Donovan J., High Court, 23rd July, 2001); AMT v. Refugee Appeals Tribunal [2004] IEHC 219, [2004] 2 IR 607; V.C.B.L. v. Refugee Appeals Tribunal [2010] IEHC 362, (Unreported, High Court, Cooke J., 15th October, 2010); ML v. Refugee Appeals Tribunal (High Court, Hogan J., 21st January, 2011) and HR v. Refugee Appeals Tribunal [2011] IEHC 151 (Unreported, High Court, Cooke J., 15th April, 2011).”
Did a Material Error Occur?
25. There is no dispute about the fact that an error was made. The material put before the Board before it reached its decision was manifestly mistaken. Three different figures were given for ostensibly the same thing or at least potentially the same thing. Whilst it might be said that the amounts involved were in absolute standards fairly modest, nonetheless the highest figure put forward was almost double the lowest. As I have said, clearly at least two of the figures were wrong and perhaps all three were wrong. WCBA in its submission had come up with a different figure again which was lower than any of the figures appearing in the Courts Service reports. The respondent submits that the differences were immaterial but there is no evidence of that as no member of the Board has sworn an affidavit. The mistake, had it been realised, might conceivably have lead to a different outcome. It seems to me that this is all that is required. It is not necessary to show that a different result would have ensued if the mistake had been discovered, merely that it might have. However, there is no way of knowing.
26. In that respect, it is important to bear in mind that the entire project from the outset was primarily, if not entirely, about the allocation of funding. The whole purpose of considering the closure of venues was to see if savings could be made. No other reason has been suggested. As the Courts Service itself contends in its written submissions, these proceedings involved a challenge to the respondent’s decision on how to efficiently allocate limited resources. The expression “resources” is normally synonymous with “money”. In its submissions, the respondent repeatedly refers to the budgetary constraints introduced as a result of the cutbacks and the need to have regard to its statutory duty to secure the most beneficial, effective and efficient use of resources. Whatever way one looks at it, that can really only come down to saving money. If for example, closing Skibbereen Court House was going to result in a cost to the respondent, could this be said to be a beneficial, effective and efficient use of its resources? If on the other hand the closure was predicated on a saving being made, then it is difficult to see how it could be said that the amount of such saving could ever be other than material to the decision.
27. In my view, therefore, the errors of fact made in this case must be viewed as fatal to the decision.
Reasons?
28. The respondent contends that it had no duty to give reasons but if it did, it fulfilled the duty. The oft quoted words of Fennelly J. in Mallak v. Minister for Justice [2012] 3 I.R. 297 are apposite (at p. 321):
“[63.] This body of cases demonstrates that, over a period approaching thirty years, our courts have recognised a significant range of circumstances in which a failure or refusal by a decision maker to explain or give reasons for a decision may amount to a ground for quashing it. Costello J. attached importance, quite correctly, to the presence or absence from the statutory scheme of a right of appeal. The absence of a statement of reasons may render such a right nugatory…
[67.] More fundamentally, and for the same reason, it is not possible for the applicant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, it is not possible for the courts effectively to exercise their power of judicial review.
[68.] In the present state of evolution of our law, it is not easy to conceive of a decision maker being dispensed from giving an explanation either of the decision or of the decision making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.
[69.] Several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them.”
29. These comments were again approved more recently by the Supreme Court in DMPT v. Taxing Master Moran [2015] IESC 36.
30. Similar views were expressed by the Supreme Court in EMI Records v. Data Protection Commissioner [2014] ILRM 225 where Clarke J. delivering the court’s judgment said (at p. 248):
“[6.3] More recently, in Meadows v. Minister for Justice [2010] 2 I.R. 701; [2011] 2 ILRM 157, Murray C.J. said as follows at pp. 732/177-178:
‘An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale on foot of which the decision is taken. That rationale should be patent from the terms of the decision or capable of being inferred from its terms and its context.
Unless that is so then the constitutional right of access to the courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective.’”
Clarke J. continued at p.250:
“[6.9] Where, for example, an adjudicator makes a decision after a process in which both sides have made detailed submissions it may well, as Fennelly J. pointed out in Mallak , be that the reasons will be obvious by reference to the process which has led to the decision such that neither of the parties could be in any reasonable doubt as to what the reasons were. But it seems to me that, in a case where any party affected by a decision could be in any reasonable doubt as to what the reasons actually were, it must follow that adequate reasons have not been given.”
31. The issue of closing courthouses was recently considered by a divisional court of the High Court of Justice of England and Wales in two decisions given on the same day. The first, R. (Murray and Co.) v. The Lord Chancellor [2011] EWHC 1528 (Admin) concerned the closure of Sittingbourne Magistrate’s Court as part of a nationwide appraisal of court venues for closure. A lengthy consultation process had been undertaken by the Lord Chancellor which resulted in the closure of a significant number of courts. Delivering the court’s judgment, Beatson J. said (at para. 37):
“There is no real dispute as to the relevant law applicable in this case. It can be summarised as follows:
(1) Even though the Lord Chancellor was under no express statutory duty to consult, once consultation was undertaken it had to be conducted fairly: see R v North and East Devon Health Authority, ex-parte Coughlan [2001] QB 213 and R ,(Capenhurst and others) v Leicester City Council [2004] EWHC 2124 (Admin) at [44]…
(4) As far as the second of the requirements in ex-parte Gunning (enabling intelligent consideration and an intelligent response) is concerned, ‘it is important that any consultee should be aware of the basis on which a proposal put forward for … consultation has been considered and will thereafter be considered…’: per Silber J. in the Capenhurst case at [46]. Silber J. also stated that this means that the person consulted should be informed or be aware of what criterion would be adopted by the decision-maker and what factors would be considered decisive or of substantial importance by the decision-maker in making his decision at the end of the consultation process.”
32. In the second case, Vale of Glamorgan Council v. Lord Chancellor [2011] EWHC 1532 (Admin) which concerned Barry Magistrate’s Court, the judgment of the same court was delivered by Elias L.J. who said (at para. 38):
“Failed to provide proper reasons.
[38.] This submission was not advanced with any particular enthusiasm, and in our view rightly so. We do not accept a submission from the Lord Chancellor that there was no obligation to give any reasons at all for this decision. It is true that the common law has not yet reached the point where reasons need be given for all administrative decisions: see Hasan v Secretary of State for Trade and Industry [2008] EWCA Civ 1322, para 21 per Sir Anthony May, P. However, where there has been consultation the Minister is under an obligation properly to consider the responses, and in our view he is then obliged to give reasons sufficient to indicate why, notwithstanding submissions to the contrary, he has made the decision he has.”
33. In the present case, a lengthy process was undertaken spanning some years. It involved extensive consultation with the relevant stakeholders including the applicants. Very detailed written submissions were made by WCBA on all aspects of the matter in which important constitutional rights of the applicants and many others were potentially affected. At the end of that lengthy and detailed consultation process, the only evidence of the Board’s decision is in the final sentence of the extract from the minutes above referred to. This simply says that the Board decided to approve the closure. Clearly, it could not be said that this on its face gives any reason for the decision. Even if it were to be argued that the Board by implication was accepting the recommendation of the Building Committee apparently made on 13th May, 2013, there is no minute of that decision or anything which indicates the reasons for which it was reached. Regrettably therefore, it seems to me that the applicants are left in the dark as to the reasons for the decision under challenge here, irrespective of mistake. I would have thought that applicants having engaged extensively with the respondent and made comprehensive submissions should at least be given an indication as to why those submissions were being rejected in toto. In my view therefore the decision must be set aside on this ground also.
Other Issues
34. As previously indicated, one of the applicants’ arguments is that the Courts Service has no statutory power to close a functioning courthouse. In Kennedy, Birmingham J. appears to have concluded otherwise. Insofar as this issue was considered in that case, the applicant submits that it was wrongly decided. In the light of the conclusions I have already reached, it would in my view be both unnecessary and inappropriate for me to embark on an analysis of the correctness of that decision.
35. The applicants also made submissions based on the contention that WCBA was only invited to address the closure of Skibbereen into Bantry in its written submissions to the Courts Service and was never in fact given the opportunity to deal with the closure of Skibbereen into Clonakilty. This is clearly a fair procedures point in respect of which leave was neither sought nor granted and therefore cannot be considered.
36. In addition to seeking certiorari, the applicants also seek an order of mandamus directing the Courts Service to keep Skibbereen Courthouse open. The effect of granting such an order would be to confer priority on Skibbereen Courthouse over other venues and compel the Courts Service to expend whatever resources are required to comply. In Brady v Cavan County Council [1999] 4 IR 99, Keane J. (as he then was) considered an application for an order of mandamus against a local authority to compel them to repair a particular road in its functional area. He said that to grant such an order –
“…would simply mean that its [the Respondent’s] admitted responsibilities were being discharged in a haphazard and arbitrary manner by the elevation of this particular strip to an unjustified priority in its road repair programme.”
37. The court accordingly refused the relief sought.
38. In my view therefore, an order of mandamus is not available to the applicants in this case.
Conclusion
39. For the reasons explained, I will set aside the decision of the Board and remit the matter for further consideration.
DF (called Desmond on this appeal) v Commissioner of An Garda Síochána
[2015] IESC 44
An Chúirt Uachtarach
The Supreme Court
Denham CJ
Murray J
Hardiman J
O’Donnell J
Charleton J
Record number: 2012/8876P
Appeal number: 372/2013
Between
D F (called Desmond on this appeal) (suing by his next friend K McE) (called Maeve on this appeal)
Plaintiff/Appellant
and
The Commissioner of An Garda Síochána
The Minister for Justice, Equality and Defence
Ireland and the Attorney General
Defendants/Respondents
Judgment of Mr Justice Charleton delivered on Friday the 15th day of May 2015
1. This appeal raises two issues: firstly, when does a plaintiff have an entitlement to trial by jury where multiple torts are pleaded in respect of an arrest incident; and, secondly, when does a party to proceedings have a statutory entitlement to anonymity based on embarrassment arising from of a medical condition. The appeal is from two judgments of Hogan J in the High Court: DF v Garda Commissioner & Others [2013] IEHC 5, as to the jury trial issue; and DF v Garda Commissioner & Others (No 2) [2013] IEHC 312, as to the anonymity issue. On this appeal the plaintiff appellant will have the assumed name of “Desmond”. The defendant respondents will be referred to as “the State”. There have been now three written judgments related to this case in the High Court. The third relates to the viability of constitutional torts alongside civil wrongs defined at common law; DF v Garda Commissioner & Others (No 3) [2014] IEHC 213 and is not part of this appeal. Counsel for Desmond has complained of being subjected to a multitude of procedural motions from the State. While it is understandable that those drafting a plenary summons and a statement of claim would wish, in aid of a plaintiff, to include all relevant causes of action, the result of pleading multiple and diverse apparent causes of action may be that the opposing side requires to interrogate these. That approach to pleading can obfuscate the core issue in a case.
The incident and the pleadings
2. The plaintiff/appellant Desmond suffers from a severe form of autism. The statement of claim, dated 6 September 2012, gives a date of birth for Desmond in 1985 and describes him as having severe learning disabilities. Both sides accept that on 24th September 2010 Desmond was arrested by gardaí, ostensibly under section 12 of the Mental Health Act 2001. This arrest is pleaded as being:
… unlawful, contrary to law, negligent and/or carried out in breach of duties (including breach of statutory duties) and in breach of the plaintiff’s Constitutional rights as well as his rights under the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the ‘European Convention’) as incorporated into Irish law by the European Convention on Human Rights Act 2003 and his rights under the Charter of Fundamental Rights of the European Union 2010.
3. It is claimed that as a result of this allegedly unlawful arrest, Desmond “suffered and sustained and continues to suffer and sustain serious injuries, to include physical and significant psychological and/or psychiatric injury, loss, damage and expense.” The pleading continues with allegations that there was handcuffing and restraint of Desmond and a failure to respond to later pleas from his mother, now deceased, to release him and that he was only released when his father arrived at the station. The actions of the gardaí are described as being “inter alia, in bad faith and/or want of reasonable care” in respect of these aspects of the detention. “Aggravated, punitive and/or exemplary damages” are sought “by virtue of the inhuman and degrading treatment” to which Desmond was allegedly subjected due to “placing him in an alien and hostile environment”. Further, it is claimed that the State acted in a negligent manner consequent upon a formal complaint to the Garda Síochána Ombudsman Commission and that, in so doing, Desmond’s entitlement under the Constitution to privacy and to family life was breached and rights under the European Convention were also infringed. Particulars of negligence are pleaded “to include breach of statutory duties on the part of the defendants, their servants or agents”. The prayer for relief follows on from the particulars of the claim. This seeks:
1. a declaration that the arrest was unlawful
2. a declaration that the detention was unlawful
3. damages from false imprisonment
4. damages for assault, battery and trespass to the person
5. damages for personal injury, loss damage and expense and psychiatric injury
6. damages for negligence and breach of duties of a statutory kind
7. damages from breach of the plaintiff’s Constitutional rights to liberty, bodily integrity and privacy
8. damages for failure to defendant vindicates these rights and to protect the plaintiff from unjust attack
9. damages for breach of the plaintiff’s rights under the European Convention on Human Rights Act 2003 “to include, inter alia, the rights to liberty, to private and family life and the right not to be subjected to inhuman and degrading treatment”
10. damages for breach of Articles 3.1, 4, 6 and 7 of the Charter of Fundamental Rights of the European Union
11. aggravated, punitive or exemplary damages
12. such further and/or other relief as the court thinks fit
13. interest pursuant to statute
14. costs
4. By reciting these claimed reliefs, it is not to be in any way taken that it is accepted that any such wrong exists as a matter of law. The State defence, delivered on 28 September 2012, awaits proof of the plaintiff’s date of birth and any particulars related to his disability. The defence set out a factual narrative. It asserts that prior to the arrest Desmond allegedly chased two young women with a stick, causing them some distress. Following on a complaint, it is said, gardaí arrived at the scene to find Desmond swinging a stick. On attempting to speak to him, the State claims, the gardaí realised that there was a disability but decided that section 12 of the Mental Health Act 2001 applied and took him into custody on the basis that he was “a person suffering from a mental disorder such that there was a serious likelihood of the plaintiff causing immediate and serious harm to himself or to other persons”. It is pleaded that care was taken under the relevant statutory provision to contact a medical practitioner. A different view to the statement of claim is given as to the facts related to custody. The defence denies that there was a breach of the torts, duties, constitutional rights and convention rights asserted on behalf of Desmond.
5. The incident was simple: the core issue is whether there was a lawful arrest and a lawful detention. It is really about whether Desmond was unlawfully arrested. When gardaí arrest someone they usually place them in a squad car or use reasonable force to usher them into a Garda station or a cell. That involves unwanted touching. Hence false arrest and intentional trespass to the person, assault, are connected torts. Apart from that, a subsidiary issue may arise on the pleadings in this case as to whether the statutory mechanism for dealing with complaints was not followed by the State defendants and as to whether, as a matter of law, this gives rise to an entitlement to damages.
Jury trial in civil cases
6. The trial judge reasoned that, as a matter of law, false imprisonment was a tort which required to be tried by a judge without a jury. It was the role of the judge, Hogan J held, to decide whether an imprisonment was false, and therefore tortious. He further decided that once those decisions had been made by the trial judge that the jury could proceed to assess damages. Whether an arrest is legally justified or not is a matter of law, the trial judge reasoned. This is correct but such a decision is also squarely based on fact. After an analysis of the relevant authorities, at paragraph 39 of his judgment, the trial judge stated:
All of this means is that the legal issues in the trial – whether the arrest and detention was lawful, whether the defendants were negligent and so forth – will be exclusively matters for the trial judge to determine. This also means that the issue of any declaratory relief in relation to the validity of the arrest and detention will be exclusively a matter for the trial judge to determine. All other matters (including the question of damages in respect of all claims, should this arise) remain, in principle, at any rate, matters for the jury.
7. In making that ruling, the trial judge was particularly influenced by the relevant provisions of the Rules of the Superior Courts. This emerges, in particular, from his conclusion on this issue at paragraph 40:
It follows from the foregoing that the plaintiff is entitled to jury trial in respect of the claims contained in the general endorsement of claim. I will, however, direct pursuant to O. 36, r. 7 that all issues touching on concerning the legality of the arrest and detention of the plaintiff on 24th of September, 2010, by members of An Garda Síochána (including the claims from negligence and breach of duty) are to be determined by the trial judge alone, with the remaining issues to be determined, subject to appropriate directions of the trial judge, by the jury.
8. On this appeal, counsel for Desmond argue that this ruling undermines the traditional approach to the role of judge and jury in a civil case. They claim also that a plaintiff has an entitlement to jury trial, meaning that the jury tries the case. Every question of law, counsel assert, is capable of being reduced to issues of fact which the jury will answer and in respect of which, if the answers are positive, they may proceed to assess damages. There is nothing novel about a jury deciding as a matter of fact that a person has been wrongly arrested, counsel for Desmond urge, in respect of alleged shoplifting or because a police power was claimed to have been improperly used. Such decisions have been tried without difficulty heretofore, it is claimed. On the other hand, counsel for the State seek to uphold the ruling of the trial judge.
9. With the passing of the Supreme Court of Judicature Act (Ireland), 1877 the then extant right to jury trial was preserved for civil actions, meaning Queen’s Bench, as opposed to Chancery causes. Section 48 of the Act of 1877 provides that:
… nothing in this Act, or in any rule made under its provisions, shall take away or prejudice the right of any party to any action to have questions of fact tried by a jury in such cases as might heretofore of right have so required, nor upon any trial before a jury to have the issues for trial by jury submitted and left by the Judge to the jury before whom the same shall come for trial, with a proper and complete direction to the jury upon the law and as to the evidence applicable to such issues …
10. In the consequent Rules of the Supreme Court (Ireland), 1891 the elements of procedure relevant to this issue were set out under Order XXXVI at numerals 3, 4 and 5 thus:
3. All causes or matters assigned by the Principle Act to the Chancery Division, and all other causes are matters which the parties are not entitled as of right to have tried with the jury, shall be tried with a Judge without a jury, unless the Court or a Judge shall otherwise order.
4. In all cases not within the preceding rule, the parties serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried without or with the jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within four days from the service of ordinary notice of trial, within two days from the service of short notice of trial, within such extended time as the Court or a Judge may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.
5. The Court or a Judge may, if it shall appear desirable, direct trial without a jury of any question or issue of fact, or party of fact and party of law, arising in any cause or matter which previously to the passing of the principle Act could, without any consent of the parties, have been tried without a jury, and such trial may if so ordered by the Court or a Judge, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.
11. The Rules of the Superior Courts of 1986 still follow some of these 1891 provisions in Order 36. It may be commented, however, that the entitlement of a judge to try a jury issue alone in rule 7 fits in a most confusing manner in the context in which it now appears in the modern text. Because of its lack of utility, whether retaining this rule as worthwhile is to be doubted. The modern text reads thus since 1986:
5. All causes or matters, which the parties are not entitled as of right to have tried with a jury, shall be tried by a Judge without a jury, unless the court shall otherwise order.
6. In all cases not within rule 5, the parties serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried with or without a jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within fourteen days from the service of notice of trial, or within such time as the Court may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.
7. The court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which, without any consent of parties, can be tried without a jury, and such trial may, if so ordered by the Court, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.
12. Under Article 38.5 of the Constitution, the only right to trial by jury is in respect of non-minor criminal offences, in other words serious crimes. There is no guarantee under the Constitution of jury trial in respect of any form of civil procedure. Any entitlement, in that regard, is entirely statutory. In many instances, and certainly as to the ancient common-law civil wrongs, tort law follows definitions which are very similar to the elements of criminal offences. Relevant to this case, false imprisonment consists of elements in both tort law and crime which are interchangeable. A similar comment might be made in relation to the allegations of assault and battery; but more recently assault has come to mean, or has been defined by statute as, a physical intrusion on the person of another without consent; leaving aside issues as to when a person can so consent. Experience has shown that juries have had no difficulty in deciding whether or not sufficient proof exists that the tort of false imprisonment has probably been inflicted on a plaintiff. Similarly, quite difficult questions of law would also be applied by juries in criminal cases in order to reach a verdict in an indictment for false imprisonment.
13. In respect of civil cases, the traditional approach as to the division of responsibilities between judge and jury has always been for a judge to decide as a matter of law what questions should be put to a jury and then to instruct the jury as to the applicable law. This has consistently provided sufficient guidance for juries. They decide the facts in such a way that their answers to questions encapsulate the elements of the tort which has been tried before them. Thus, the legal function of the judge, in the absence of the jury, is to consider, with counsel if necessary, how questions in a civil jury trial may best be framed. At the end of the trial, the jury is addressed by counsel on both sides and is then charged as to the law by the trial judge. The jury then retires to consider the answers to the questions posed. In a civil case these answers take the form of its verdict.
14. Were there to be an issue in this case as to whether Desmond was or was not brought under arrest to the Garda station, supposing that the defence had denied that fact, the first question for the jury would be: was the plaintiff arrested on the occasion in question? Since that is not an issue in the case, it appears that the other factual elements which are disputed may simply be put by the trial judge to the jury in the form of numbered questions. It is not possible to offer any guidance, much less make a decision, as to what these might be, but looming large is the question as to whether there was information upon which the gardaí might reasonably accept the reports made to them; whether that information coupled with the behaviour of Desmond when they arrived at the scene was such whereby they reasonably concluded that he was a person suffering from a mental disorder such that there was a serious likelihood of the plaintiff causing immediate and serious harm to himself or to other persons. The reality of this case is that the gardaí arrested him either in accordance with the legal power or not. These are matters of fact. If the answer to those questions were in the affirmative, damages would not be assessed because the arrest would be lawful. It would appear that were the answer to the jury questions in the negative as to the foundation for the arrest, the jury would go on to assess damages.
15. Issues of law arise on the pleadings which do not give rise to a right to jury trial. These are, firstly, in respect of the alleged wrong of the State in respect of complaints made in the aftermath of the release of Desmond and, secondly, in respect of the elements of the constitutional torts which are claimed to be integral to the case by counsel on behalf of Desmond in order to vindicate his rights to liberty, bodily integrity and privacy. There is no claim that section 12 of the Mental Health Act 2001 infringes the Constitution.
16. Added to the pleas of false imprisonment and assault have been novel constitutional torts. There is no basis in statute whereby such torts, should they exist at all, may be tried by a jury. The legal issue of whether such torts exist or whether this case is in reality one about false imprisonment is a matter of law for the judge. Those torts, if they exist at all, could not be ones covered by any statutory entitlement to trial by jury for civil wrongs preserved by the Act of 1877, since these did not exist prior to 1937. It is thus clear that no right to trial by jury exists for constitutional torts.
17. Secondly, there are the common law remedies, the primary one here being based on an alleged false imprisonment, involving as it does physical restraint; hence trespass to the person or, in other words, assault. Since the Act of 1877, the entitlement to jury trial was preserved through section 94 of the Courts of Justice Act 1924. That entitlement, however, has since been severely curtailed: reduced to a very small category of actions in the High Court through the Courts Act 1988. Section 1 of the Act of 1988 abolishes trial by jury for actions “claiming damages in respect of personal injuries caused by negligence, nuisance or breach of duty”. Similarly excluded from trial by civil jury are claims under section 48 of the Civil Liability Act 1961 and actions arising from section 18 of the Air Navigation and Transport Act 1936, as amended. Included in the abolition of civil jury trial are actions in which “damages are claimed both in respect of personal injuries… and in respect of another matter” and damages claims “other than [for] personal injuries”. Death is, for these statutory purposes, a personal injury which does not carry the entitlement to a civil jury trial. Jury actions are not available, further, where the claim arises “directly or indirectly from an act or omission that also resulted in personal injuries”. An unqualified summary of the reform would be that personal injury actions, which up to 1988 were grist to the mill in legal practice before juries, were now to be tried by a judge alone. To this statutory reform, however, there is a saver. Section 1(3) provides that the removal of the entitlement to civil jury trial is not to apply to:
(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court … that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespassed the person or both … in respect of that act or omission, or
(c) a question of fact or an issue arising in the action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespassed to the person or both, as the case may be, in respect of the actor omission concerned.
18. Clearly, actions for false imprisonment and assault are within the province of a jury trial in the High Court. Joining other causes of action to false imprisonment or intentional trespass to the person, assault, may preserve the entitlement to jury trial but only where there is one act or omission at issue in the trial, consisting in terms of the external facts of an assault or of false imprisonment, or both, and the subsidiary torts are allegedly based on that assault or on that false imprisonment. An example would be where it is alleged that as well as an action for deprivation of liberty taking place contrary to the statutory defence offered by a defendant, that the application of the power of arrest was negligent: though here it must be added that this may be a more than unhelpful conflation of separate torts. This is not to state that any such pleading is possible. As to whether adding allegations of other torts to false imprisonment and assault is reasonable having regard to the circumstances determines the balance as to whether the result should be a trial by a judge sitting alone or a trial by a judge sitting with a jury. The reform in section 1 of the Act of 1988 is not to be subverted. This is a matter of assessment by the trial judge as to where, in substance, the nature of the claim lies. What is clear is that the Oireachtas decided that issues of false imprisonment, which are predominantly cases brought by citizens against the State for alleged wrongful arrest by gardaí, and assault cases, which may include such cases or in more recent times have involved allegations of sexual violence, should be tried by a judge with a jury. It is only if the joinder of other torts or causes of action takes the substance and nature of the case away from those core jury-trial torts that a trial should take place with a judge sitting alone.
19. In Sheridan v Kelly [2006] 1 IR 314, the plaintiff sued in respect of sexual abuse at the school which he attended in the junior cycle. In addition, claims for negligence, in failing to become aware of and prevent the abuse, and claims based upon vicarious liability of the school in respect of the same actions were included in the statement of claim. In the High Court, a trial before a judge sitting alone was ordered on the basis that the claim consisted of a personal injury action in respect of negligence. Giving the judgment of the Supreme Court, Fennelly J reversed that decision and ordered a civil jury trial. While the action was one for intentional trespass to the person and for negligence, despite a plea that the was a failure to have in place procedures or measures appropriate for the supervision of teachers, a classic negligence claim, the essence of the plaintiff’s claim was that he had been unlawfully touched by one of his teachers. Further, the claims of assault and of negligence arose out of the same alleged act or omission, the statutory test. At page 319 of the report, Fennelly J rejected the argument on behalf of the defendants in favour of a trial by judge alone and stated:
I do not think that any of these matters take this case outside the scope of subs. (3)(b). It is clear that the core of the plaintiff’s claim is that he was sexually assaulted by the first defendant. Everything alleged can be traced back to that key allegation. Insofar as the claim is simply based on alleged vicarious liability, there is full correspondence between the damages alleged to flow from the acts of the two defendants. However, the subsection allows a plaintiff, in certain cases, and provided he claims damages as a result of one of the two specified causes of action, namely “false imprisonment or intentional trespass to the person,” or both also to seek jury trial where he pleads that he has suffered damages caused by, for example, negligence. The subsection requires, however, that these two causes of action be linked by a claim that the damages arose “in respect of the same act or omission.” The focus is on the damages and the relevant act or omission which causes them. The same act may give rise to a claim under different legal headings. Acts giving rise to a breach of contract may also, depending on the factual context, constitute negligence or trespass. The subsection does not require that the damages be identical. They may be “claimed in addition, or as an alternative, to the other damages claimed.”
In the present case, the plaintiff’s claim is that he suffered personal injury as a result of the assaults committed by the first defendant. Any act alleged against the second named defendant is claimed to have led to the same damage. I am satisfied that this claim comes within s. 1 (3)(b) of the Act of 1988. Therefore, the plaintiff is entitled to have his claim heard by a judge sitting with a jury. I would allow the appeal and substitute an order dismissing the notice of motion of the second defendant.
Nothing in this judgment affects the normal discretion of the High Court to decide whether the different issues in the case are to be tried separately or together, whether by the application of O.18, r;1 of the Rules of the Superior Courts 1986 or otherwise.
20. Were the argument of counsel for the State on this appeal to be correct, it would mean that making a core allegation of false imprisonment but pleading various other wrongs based upon the facts that consisted of that alleged wrong in the guise of different torts, the matter would be placed outside the exemption from the abolition of jury trial. That is not what the legislation provides for. No comment is made here as to the separate section dealing with the preservation of jury trial in defamation actions and the conditions thereof.
21. In addition, it was asserted by counsel for the State that Order 36 Rule 7 of the Rules of the Superior Courts entitles the trial judge to order a trial by judge alone notwithstanding that there is an entitlement pursuant to legislation for the trial to be one by a judge sitting with a jury. That argument cannot succeed. The Superior Courts Rules Committee is not entitled to overrule the provisions of the Act of 1988. That Committee does valuable work in proceedings of the courts through establishing appropriate rules in aid of the proper administration of justice. It is not a legislative body. Furthermore, it is clear that the meaning sought to be attributed to this rule by the State amounts to a misinterpretation; one that is perhaps attractive given the anomalous context in which the rule now exists. When the rule says that the “Court may, if it shall appear desirable, direct trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter” that authority is expressly directed to any action where “without any consent of parties” a trial can take place “without a jury”. Once it is decided as a matter of law that section 1(3) of the Act of 1988 applies, in other words that the action is one which carried the entitlement of a jury trial, the action ceases to be one where without the consent of the parties a trial by judge alone can take place.
Ordering anonymity
22. Article 34.1 of the Constitution makes it imperative that justice “be administered in public” except “in such special and limited cases as may be prescribed by law”. Here, it should be noted that there is a law prescribing an exception of a limited kind contained in section 27 of the Civil Law (Miscellaneous Proceedings) Act 2008. An examination of this legislation confirms that it is a smorgasbord of amendments and provisions covering such things as judicial pensions, making court rules, providing for service of proceedings, allowing assistance in court to those with disabilities, judicial service, control of solicitors and landlord and tenant law. In sum, nothing in the section to be quoted gains anything from analysis in context. There is no context relevant save for Article 34.1. Section 27 provides:
(1) Where in any civil proceedings (including such proceedings on appeal) a relevant person has a medical condition, an application may be made to the court in which the proceedings have been brought by any party to the proceedings for an order under this section prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the relevant person as a person having that condition.
(2) An application for an order under this section may be made at any stage of the proceedings.
(3) The court shall grant an order under this section only if it is satisfied that-
(a) the relevant person concerned has a medical condition,
(b) his or her identification as a person with that condition would be likely to cause undue stress to him or her, and
(c) the order would not be prejudicial to the interests of justice.
23. Subsection 4 provides for an appeal in the ordinary way. Subsection 5 allows a court to which an order is appealed to vary or revoke the order. While subsection 6 states that an application for an order may be made by a party to the proceedings, under subsection 11 this includes both a party to the proceedings and includes any person called, or proposed to be called, as a witness. While notice “to the other party or parties to the proceedings” is required under subsection 6, this need not be by notice of motion. Letters may be exchanged instead; the necessity for a motion then perhaps becoming apparent if there is no disagreement, though the decision is always that of the judge. The same subsection provides that an application for such an order is to be made “to the judge concerned in chambers.” Subsection 7 makes it a criminal offence, carrying a fine of €25,000 or prison for 3 months or both, to defy such an order and the relevant mental element is specified in subsection 8.
24. The learned trial judge held that section 27 of the Act of 2008 had to be interpreted in the light of the constitutional imperative for public access to hearings. This, Hogan J held, required a restrictive interpretation of this provision so that the full scope of Article 38.1 was not undermined. The constitutional guarantee, the trial judge reasoned, required not only that the doors of the court be open to the public and the press but that all that went on in court could be reported, most especially relevant here as to who was taking the case and who was defending it and, it follows, who were the witnesses. The trial judge was clearly influenced by the ordinary way in which courts conduct their procedure. Anonymity can be abused. In McKeogh v John Doe 1 & ors [2012] IEHC 95, a young man was wrongly identified on social media as not paying a taxi fare. He was subjected to on-line attacks on his good name by those hiding behind the confidentiality of internet service providers. But, the Oireachtas must be taken to be aware of that aspect of human nature and to be able to draw the appropriate balance. Hogan J held that anonymity was not possible in this case. The trial judge especially relied on the judgment of Laffoy J in Roe v Blood Transfusion Service Board [1996] 3 IR 67 at 71 and the decision of McCracken J in Re Ansbacher (Cayman) Ltd [2002] 2 IR 517 and ruling of Clarke J in Doe v Revenue Commissioners [2008] 3 IR 328. All of these decisions, in the absence of the express legislative exception prescribed in Article 38.1 of the Constitution, and in the particular circumstances of those cases in that context, held that anonymity could not be ordered for the litigants in those cases. Here it is different. There is legislation providing for a limited departure from a full open hearing as contemplated by Article 34.1, provided particular terms are judicially adjudicated to have been met. The Oireachtas has fulfilled its function of determining whether it is appropriate that, and in what circumstances, a party to proceedings, plaintiff or defendant, applicant or respondent, or a witness or prospective witness, is entitled to be seen by the public in court, observed by and reported on by the press but, exceptionally, is to be kept unidentified in any written judgment of the court or in media reports. This minor and exceptional departure from open reporting is possible once a series of statutory tests have been met. That is different to the exercise of a jurisdiction dependant solely on Article 34.1 which is not informed by the legislation contemplated by the Constitution. The trial judge was concerned with inequality; a situation where an anonymous person could bring proceedings but a defendant sued in respect of a civil wrong could not have the same privileged exception from the full application of a public and fully publicly reported hearing. At paragraph 33, the trial judge held as follows:
If one leaves the plaintiff’s personal tragic medical circumstances aside, it would have to be said as a general rule that it would be manifestly unfair if the accuser could advance serious charges anonymously while the accused must face the glare of publicity. There are few things worse in life than having to face the false accusation. Two thousand years of human history has shown that there is no shortage of persons willing to throw the first stone, especially if they can so in safety and with no risk to themselves. The cloak of anonymity assists that process in that it helps to foster an environment where allegations can recklessly be made against a named and publicly identifiable individual with few, if any, personal consequences. Indeed, if empirical proof of this were required, one need not go further than the facts of McKeogh itself. If Article 40.3.2 is to have any real meaning, the courts are accordingly bound to devise procedures which protect the substance an individual’s right to a good name.
25. This is an ordinary damages claim. The plaintiff appellant Desmond is accusing no one. He is making a civil claim through his testamentary guardian Maeve. In essence, he claims to have been wrongly arrested. Were it to be the case that a member of the gardaí in this case had an embarrassing medical condition, an application to restrict the publication of his or her name could be made. Similarly, that could apply to, for instance, a witness who might be a friend of the plaintiff appellant Desmond and who had a similar condition. Section 27 of the Act of 2008 is not challenged as to its constitutionality. The legislation makes a minor adjustment to the fully public nature of court proceedings under Article 34.1. As such it is to be interpreted according to its terms. The application for an order of restriction of reporting was not made in the absence of legislation: it was made because of it. In M A R A (Nigeria) (An infant suing by her mother and next friend O A) v The Minister for Justice and Equality & ors [2014] IESC 71, which postdates the High Court decision in this case, the Supreme Court considered the various decisions on Article 34.1 of the Constitution and summarised the effect of these at paragraph 25 thus:
It follows that Article 34.1 requires that proceedings in court be open to the public and this entails the attendance of print and broadcast media as part of the scrutiny which judicial conduct and judicial decisions are subject to in a democratic society. The media are entitled to issue, and perform a public service in circulating, fair and accurate reports of litigation. In exceptional cases, for good reasons that take account of the sensitivities of particular kinds of litigation, recognising that without privacy within court proceedings people would be inhibited to such a degree that the right to litigate would be strongly threatened, the Oireachtas is entitled to require that court proceedings be private. In terms of the protection of litigants from public scrutiny, there are degrees. Of these the strongest is, firstly, an in camera, or private, hearing where only the parties, their lawyers and their witnesses may attend together with such directly interested persons as the court permits. An in camera hearing will nonetheless result in a judicial decision and if this is in written form it should be circulated and may be published in such a form that the issues and decision may be reported but not any name or fact that will identify the parties. An in camera hearing may, secondly, be legislated for so as to allow the attendance of accredited members of the press and other media in order to enable proper reporting on behalf of the public even though the public are not to be admitted. The anonymity of the parties is preserved in any report or discussion outside the context of the proceedings. By statute, a lesser form of the protection of the privacy of proceedings, thirdly, involves the doors of the court remaining open to the public but requires that any report of what occurs during the proceedings to be anonymous as to the identities of the parties. Exceptions to the requirement of public hearings under Article 34.1 are ordinarily brought into operation through legislation; to which the courts will give effect in the degree of protection that the terms thereof require. Where, however, the courts consider that there is a legitimate and overriding public interest in the ongoing scrutiny of in camera proceedings, members of the print or broadcast media may be admitted to hearings in controlled circumstances which preserve the anonymity and privacy of litigants, where this is demonstrably possible, while upholding the integrity of their right to litigate. Such decisions are necessarily rare. They arise from the duty of the courts to uphold the special and limited nature of any exception to the requirement for public hearings. Where discretion is given in legislation to allow an in camera hearing, any decision by a court in favour of restricting public access or reporting must be limited to such cases, or such portions of cases, that involve the legitimate interests that are targeted by the legislation and where the failure to restrict the hearing would mean that the administration of justice would be undermined. Where legislation requires anonymity for particular kinds of litigants, that requirement does not need any additional scrutiny: court reports are to be redacted of names and any other fact that might reasonably lead to the identification of parties.
26. As is clear from the MARA case, the lesser form of legislative restriction on the fully open nature of court proceedings, namely the redaction of names on any public report in news media, does not make it necessary for a judge hearing such an application to rebalance rights or, more onerously and apparently contrary to the terms of the relevant legislation, to remove the protection of redaction from a litigant who comes within the terms of s. 27 of the Act of 2008. Only a minor diminution of a full open and fully reported hearing is involved in the application of that section and only then if the party or witness comes as a matter of fact within its terms. Such a provision in law is contemplated by Article 34.1. There is no reason why it should not be applied in accordance with its terms. Section 27 of the Act of 2008 either applies or not. The trial judge held in an earlier case that the section could apply whether the plaintiff or witness had any consciousness of embarrassment; Children’s University Hospital, Temple Street v CD [2011] 1 IR 665 where a baby was being withheld treatment because of a religious conviction of the baby’s parents.
27. On this appeal, one of the main arguments of the State has been that the level of autism suffered by Desmond is such that he would have no awareness of being in court or of his case being reported. An expert report was furnished in that regard. That expert report, while accepted by the trial judge, does not take into account the effect that reporting the name of a plaintiff or a defendant or a witness can have in a society where, globally, people can be harried and undermined by anonymous internet malice. Hogan J predicted the consequences of this by reference to the McKeogh case. As the trial judge correctly identified, Desmond needs routine, loves watching horses, guards a particular patch of ground as a task appointed by his mind and does not need people of malice being attracted to him or intruding on that space. This would be an all too unfortunate and predictable result of the publication of his name, address and medical particulars.
28. Finally, it might also be noted that the change in the law that section 27 of the Act of 2008 represents took place against a background of people being required to litigate and have their names and address reported notwithstanding that they were living dignified lives and choosing to hide, or partly conceal, debilitating and embarrassing conditions. The change brought about by the Act of 2008 has not meant that such plaintiffs or defendants or witnesses get a hearing in camera. Such a hearing is not secret. What it does mean that a much lesser form of protection may be appropriately given as a necessary concession in our society where the terms of that entitlement are met in accordance with the will of the Oireachtas.
29. Construing the section on its own terms, therefore, Desmond is a party to proceedings, he has a medical condition, namely autism, and identifying him as such is likely to subject him to undue stress. This is due to the predictable reaction of others. There is no basis for assuming that his serious and medically proven condition will not impact on the ease with which Desmond can take a case. In reality, he is under a disability. The vast majority of litigants and witnesses are not. The State also argued on this appeal that anonymity should not be granted to Desmond because more witnesses might emerge through reading the reports and volunteering to give evidence for the defence side of the case. In that respect, it is claimed that the “interests of justice” require that such an order not be made. The focus of the argument is correct. The test as set out in s.27(3)(c) requires that such an order should be “prejudicial to the interests of justice”. That does not either require or allow a recasting of the section so to take any considerations of open justice into account under Article 34.1. Reporting restrictions, it is claimed, might result in a witness being unaware of proceedings and so undermine a fair hearing. That inventive argument cannot be validly made on the pleadings in this case. On the basis of the defence, the gardaí claim to have had reports requiring their intervention. On arriving at the scene where the stick waving and chasing had, as had been reported to them, apparently taken place, they apparently reached a conclusion that they should arrest Desmond because of his mental condition and it being a danger to himself and others. The application of that power of arrest is what this case is about. The validity of those actions is to be judged according to the reports to the gardaí and their own observations. There is no danger of prejudice to justice by Desmond being named in reports of proceedings in that way instead of under his own name and address.
Structuring this case
30. This is now the fourth written judgment from the Superior Courts in this case. It is a simple case. The purpose of the courts established under the Constitution is to provide a means of access to persons who claim to have a grievance that is legally justiciable. Of the essence of that function is the identification and pursuit of core issues in a case.
31. There will be an order requiring that Desmond be not identified in the media when this case comes on for trial or in any reporting of this any other decision of the courts. His assumed name may be used instead and the place of the incident may be stated to be in the West of Ireland.
32. The time-honoured manner whereby simple questions are put by the trial judge to the jury trying a civil case and a decree is made either in favour of a plaintiff or dismissing a case consequent upon those answers should be followed. During the hearing of this appeal, the Court was told that a new statement of claim has now been delivered excluding claims in negligence, but this pleading was not seen on this appeal. Whatever its import, which cannot now be commented upon, there remain elaborate and legally complex claims that the tort of false imprisonment and assault are inadequate to protect the constitutional rights of Desmond. There further exist claims that the European Convention on Human Rights establishes other, and presumably wider, obligations that were somehow allegedly infringed. This case needs to return to what it is, in fact, about.
33. Both sides agree that this young man Desmond was arrested. The ostensible justification was based upon the report of facts which may be the subject of dispute that a jury will have to resolve. Whatever decision is reached by the jury, based upon whatever questions are put by the trial judge to the jury, will impact upon the core defence which is that section 12 of the Mental Health Act 2001 justified arrest in those circumstances. If there are wider obligations then are already defined in tort law, in respect of whatever other claims are also pleaded arising out of the same incident, these will need to be decided by the trial judge since there is no right to trial by jury in respect of these alleged torts. Once these are disposed of, the jury may be asked to decide the facts relevant to the core claim; was a power of arrest exercised in good faith by members of An Garda Síochána in within the terms of a statutory power.
Result
34. The plaintiff appellant Desmond is entitled by statute to anonymity in the trial and of any preliminary step of these proceedings and any report thereof. A jury will at that trial have to answer questions put to them, as framed by the trial judge, relating to the validity of Desmond’s arrest. Any other claimed civil wrongs under the Constitution or the European Convention on Human Rights, if these exist at all, are entirely within the decision of the trial judge.