Effects Between Citizens

Cases

Redmond v Minister for Environment, Heritage and Local Government

 

[2004] I.E.H.C. 24

Judgment of Mr. Justice Herbert delivered on the 13th day of February, 2004.

I am unable to accept the argument advanced on behalf of the Respondents in this Issue that this Court should either always decline or should at least be very slow and then only in the most extreme circumstances, to make an award of damages against the legislative arm of the State for the infringement in an Act of the Oireachtas of a right guaranteed by the Constitution. Such a restraint, it was said, is a necessary consequence of the separation of powers contained in the Constitution and of the deference which the great institutions of State should owe to each other. It was further submitted that the prospect of such an award of damages would inevitably inhibit and delay the National Parliament in its vital work of enacting legislation for the proper government of the State, a task often performed under exacting time constraints.

It was held by the Supreme Court in the case of T.D., & Ors. v. The Minister for Education & Ors. [2001] 4 IR 259, that the doctrine of separation of powers required that none of the three institutions of government be paramount. In my judgment, it is essential in a constitutional democracy such as this State, where a rule or convention of parliamentary sovereignty has no place, that the courts should have the power and be prepared wherever necessary to, vindicate by, “all permitted and necessary redress,” (to borrow the phrase of Henchy, J., in the case of Murphy v. The Attorney General [1982] I.R. 241 at 313), including where justice so requires by an award of damages, the constitutional rights of anyone, even where the transgression on those rights is in an Act of the National Parliament passed into law by the votes of the elected representatives of the People and signed by the President. This does not, I believe, amount to unwarranted judicial activism trespassing on the legislative function of the Oireachtas. No evidence was advanced at the hearing of this Issue and I am not prepared to assume that this particular power and, indeed duty of the courts, would in any way inhibit or interfere with the proper functioning of the legislative arm of the State within its own unique sphere of activity under the Constitution.

From the decision of the Supreme Court in the cases of, The State (Quinn) v. Ryan [1965] I.R. 70; Byrne v. Ireland and the Attorney General [1972] I.R. 241, and Murphy v. The Attorney General [1982] I.R. 241, and decisions in other cases to which I was referred during the hearing of this Issue but which I consider it unnecessary to cite here, I am satisfied that this Court does have full power to award damages, – ordinary compensatory damages or aggravated or increased compensatory damages and even punitive or exemplary damages, (see Conway v. Irish National Teachers’ Organisation & Ors. [1991] 2 I.R. 305), – against the legislative arm of the State for breach of a constitutional right by an Act of the Oireachtas or by a provision of such an Act. However, I do not think that it is reasonably possible or even desirable to attempt to formulate any principles of general application as to the circumstances in which the Court might so award damages or as to the type or amount of those damages. In this respect I adopt what was held by Henchy, J., in the case of Murphy v. The Attorney General [1982] I.R. 241 at 315, where he stated, when speaking of such redress and of the sometimes ‘transcendent considerations’ which may render any or some particular forms of redress unavailable i.e., damages or restitution, – “in any event, I think experience has shown that such constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the concrete facts of a specific case.”

In my judgment in this case, delivered on the 31st day of July, 2001, I held that the deposit requirement imposed by s. 47 of the Electoral Act, 1992, for candidacy in elections for membership of Dáil Éireann and by s. 13 of the European Parliament Election Act, 1997, for candidacy in elections for membership of the European Parliament, was, in each case, unconstitutional. I did not, however, find that any alternative or other conditions whatsoever which might be imposed as a condition of candidacy would also be unconstitutional. Following upon this decision the Oireachtas enacted the Electoral (Amendment) Act, 2002, (Number 4 of 2002), which came into operation on the 25th day of March, 2002. This Act provided for a compulsory system of nomination of any prospective candidate who did not have a certificate of political affiliation. In cases of election to membership of Dáil Éireann, the assent of 30 registered Dáil electors in the particular constituency, (excluding the candidate and any proposer), was required. In the case of elections to membership of the European Parliament, the assent of 60 registered European electors in the particular constituency, (excluding the candidate and any proposer), was required.

Having regard to the evidence offered during the course of this case, such legislation could scarcely be properly described as controversial or unexpected. The evidence of the distinguished experts in the disciplines of Political Science and Social and Economic Science who gave evidence in this case, including that of Professor Richard Sinnott of University College Dublin, who was called in evidence on behalf of the plaintiff, was to the effect that access to candidacy for election to membership of the principal national legislative assembly, at least in all European and other accepted democratic systems, was subject to some qualifying requirement and that this was desirable to prevent abuse of the electoral system.. The evidence of all the experts was that a system of nomination was probably the most widely used and the most democratic means of protecting the electoral system from being abused.

No evidence was given by the plaintiff at the hearing of this Issue or at the previous hearing that he was willing to or could put himself in a position to comply with a system of nomination by assent. I concluded having heard the plaintiff in evidence that the plaintiff was resolutely and adamantly opposed to any form of condition whatsoever. It was his opinion that all forms of condition for candidacy were unconstitutional and that every citizen, not otherwise precluded by the provisions of the Constitution itself, enjoyed an immediate right, which could not be subjected to any form of qualification whatsoever, to become a candidate for election to either Dáil Éireann or the European Parliament and in that capacity of putting his or her particular political philosophy and programme for government before the electorate. However, on the weight of the evidence, the Court cannot disregard the probability, amounting almost to a certainty, that the legislative arm of the State, would not countenance an entirely open system of nomination for election to membership of Dáil Éireann or the European Parliament, absent a ruling by this Court that any form of condition for such nomination would be unconstitutional. In the events which occurred, the plaintiff could not have become a candidate for election to membership of Dáil Éireann or of the European Parliament without complying with the provisions of s. 1 or s. 2 of the Electoral (Amendment) Act, 2002. An unsuccessful challenge to the provisions of this Act was taken in the case of Thomas King & Ors. v. The Minister for the Environment, Ireland and the Attorney General, (judgment of Kearns, J., unreported, delivered the 19th December, 2003).

I believe it to be the proper inference to be drawn from the facts that exactly similar events would not alone probably but almost certainly have occurred had Mr. Redmond sought the intervention of the court on the occasion of any of his previous unsuccessful attempts to become a candidate at elections for membership of Dáil Éireann or the European Parliament in 1992 and 1994. In my judgment he therefore cannot establish, as a matter of probability, that but for the impugned condition he would have had a chance of being elected to membership of Dáil Éireann or the European Parliament or at least have had a chance or putting his political opinions and his legislative proposals before the electorate in the character of a candidate. In my judgment this is a case of injury without loss. However, I am satisfied that this infringement of the plaintiff’s constitutional right is actionable without proof of actual loss. I am also satisfied that there is no basis for an award of punitive or exemplary damages in this case.

In the case of Conway and Others v. The Irish National Teachers Organisation and Others [1991] 2 I.R. 305 at 320, Finlay C.J., with whose judgment Griffin and McCarthy, J.J., agreed, held that every wrong which constitutes the breach of a constitutional right does not automatically attract exemplary damages. In the instant case I am satisfied that there is no basis for a finding by this Court of any wilful and conscious wrongdoing by the legislative arm of the State in knowing disregard of the constitutional rights of the plaintiff. While the enactment into Law of the impugned statutory provisions was deliberate and in that sense intentional, I am satisfied that the resulting breach of the plaintiff’s constitutional right was not intended but was a wholly undesired and altogether inadvertent consequence of the legislation.

I am quite satisfied that the sole intention of the Oireachtas in maintaining the deposit requirement for Dáil Éireann and European Parliament Elections was to protect the electoral system from abuse. I am satisfied that the sole purpose of the Oireachtas in increasing the amount of the deposit was to reflect changes in the value of money over time, i.e. the amount of the deposit in elections to Dáil Éireann remained at the sum of £100 (former currency) from 1923 to 1992. It was accepted by all the expert witnesses who gave evidence to this Court that the deposit, whether for election to membership of Dáil Éireann or the European Parliament was not generally excessive or obviously discriminatory. Unfortunately, on the evidence it did have the effect of discriminating against citizens of the State, such as the plaintiff, whose misfortune it was to exist in unusually improvised circumstances. Despite the evidence of Professor Nolan that the number of “poor households” in the State in 1992 and 1994 was 15% of the population and in 1997 was 10% of the population, there was no evidence that the Oireachtas wilfully, consciously and knowingly disregarded the possible effect of the deposit requirement on the ability of such citizens to stand for election to membership of Dáil Éireann or the European Parliament. The impugned sections were not specific to the plaintiff or to any group or category or citizens but applied generally to all citizens of the State. The deposit requirement could not be regarded in my view as a form of limiting access fee or penalty because it was returnable in certain circumstances. The deposit requirement was not a novel feature as it had existed in Irish Electoral Law, unchallenged, since the Representation of the People Act, 1918. I do not accept the argument that the suggestion, even in such an authoritive text on Irish Constitutional Law as Kelly, [(1994), Third Edition, editors Hogan and Whyte, Introductory Section page C.X.] that the deposit requirement might be unconstitutional would render the continuation of that requirement by the Oireachtas unreasonable or irrational. Finally, there is no evidence that the impugned legislation occasioned the plaintiff any pecuniary loss or damage.

I therefore propose to award nominal damages to the plaintiff. These damages are not and it is important that they should not be considered to be in any sense derisory or contemptuous. In the case of The Mediana [1900] A.C. 113 at 116, Lord Halsbury L.C., said:

” ‘nominal damages’ is a technical phrase which means that you have negatived anything like real damage, but that you are affirming by your nominal damages that there is an infraction of a legal right … ”
In the case of Kearney v. The Minister for Justice, Ireland and the Attorney General [1986] I.R. 116, Costello J., (as he then was) awarded the sum of £25 in the then currency to the plaintiff for an unjustified infringement of his right to communicate under Article 40 Section 3, subsection 1, of the Constitution. In that case certain letters which had been passed under the Prison Rules had not been delivered to the addressee. I will award Mr. Redmond nominal damages in the sum of €130.

The plaintiff’s claim was for damages for loss of a chance of being elected either to membership of Dáil Éireann or the European Parliament or alternatively for loss of a chance to put his political opinions and legislative programme before the electorate as such a candidate. I find on the evidence of the expert witnesses, especially Professor Sinnott and Professor Laver, that the plaintiff, seeking election for the first time, standing as an independent candidate without previous political connections, experience or exposure at any level, without being associated with any popular cause whether national or local and lacking any degree of prominence in business sports or social affairs, would almost certainly fail to be elected either to membership of Dáil Éireann or the European Parliament. In fact the chance of his being elected to membership of either body was on the evidence so negligible that it could not reasonably be said that the plaintiff had lost a reasonable chance and had thereby sustained loss.

In the alternative the plaintiff claimed damages for loss of a chance to present his political ideas and proposals to the electorate as a candidate for membership of Dáil Éireann or of the European Parliament. However, neither at the hearing of this issue or at the previous hearing was any evidence offered that the plaintiff had made any plans, arrangements or preparations whatsoever with a view to presenting any such ideas or proposals to the electorate. At the occasion on which he gave evidence to this Court he said that his electoral programme would be to highlight the problems of poor people and the unemployed. However, no evidence was given of the preparation or even of the formulation of a campaign strategy of even the most basic kind to carry this programme to the electorate. No evidence was given of any area maps or electoral registers having been obtained or of banners, posters, handouts or even campaign notes or speeches having been sourced, ordered obtained or prepared. No evidence was given of even the most primitive form of public address system having been reserved, purchased, hired or borrowed. No evidence was given of any public address locations having been chosen, house to house call areas targeted, helpers obtained or transport arranged. While some of these matters might reasonably not be put in hand until after a nomination had been accepted, others would have to be arranged in advance if the plaintiff had bona fide intended to put his political ideas and proposals before the electorate other than by casually accosting individual presumed voters.

In my judgment there was no evidence that the plaintiff on any of the occasions in 1992, 1994 and 1997 when he unsuccessfully endeavoured to have his name entered on the list of candidates for election to membership of Dáil Éireann or the European Parliament had made any plan or given any real consideration to what he would do if by some chance his application should succeed. I am satisfied on the balance of probabilities that on those occasions he had not made any real plans or given any real consideration to putting his political proposals and ideas before the electorate. The plaintiff stated in evidence, that he was aware from 1991 that a deposit would be required if he wished to stand for election.

The evidence given by the plaintiff on the previous hearing, – he did not give evidence on this Issue -, and which I accept, is that in 1993 he wrote, edited and published a 127 page booklet entitled “The Rules of Natural Justice”. I found that this booklet set out the plaintiff’s own social, moral and political opinions and his proposals for reform, including constitutional reform. I do not know how many copies of this booklet were printed for the sum of £600 (former currency) or thereabouts, paid by the plaintiff’s daughter for printing and publishing. While the trouble taken in publishing this booklet shows that the plaintiff has very sincerely held political opinions and ideas, it does not establish as a matter of probability that he lost a reasonable chance of putting those opinions and ideas before the electorate as a result of the breach of his constitutional right.

Loss of a chance means a chance of profit, material gain or some other “temporal advantage”, i.e. frustration of a business venture; loss of an opportunity to advance or enhance an acting on sports career. In my judgment loss of a chance of putting political opinions or ideas before the public would in itself be too vague and too incapable, as distinct from merely difficult, of being estimated in money to constitute a cause of action in tort, and therefore by analogy for breach of a constitutional right.

Other cases referred to in argument:

In the Matter of the Electoral (Amendment) Bill, 1983 (1984) I.R. 268.

An Blascaoid Mór Teoranta & Others .v. The Commissioners of Public Works in Ireland and Others [28th June, 2000] Budd, J.

Kennedy & Arnold .v. Ireland and the Attorney General (1987) I.R. 587

Gulyns & Borchardt .v. Minister for Justice, Equality and Law Reform and Others [25 June 2001] Carroll, J.

Ashby .v. White & Others, Trinity Term, 2 Annae Reginae 938.

Sinnott .v. Minister for Education and Others (2001) 2 IR 545.

Attorney General of Quebec .v. Guimond 138 D.L.R. (4th) 647.

Meskell .v. Coras Iompair Éireann (1973) I.R. 121.

Pine Valley Developments Ltd. and Another .v. Minister for the Environment & Others (1987) I.R. 23.

Moynihan .v. Greensmyth (1977) I.R. 55.

Crowley & Another .v. Ireland and Others (1980) I.R. 102.

Shortt v Commissioner of An Garda Síochána

[2007] I.E.S.C. 9

JUDGMENT of Murray C.J. delivered on the 21st day of March, 2007

The plaintiff, Mr. Shortt, has been the victim of disreputable conduct and a shocking abuse of power on the part of two Garda officers, namely a Superintendent and a Detective Garda. They both engaged in a conspiracy to concoct false evidence against the plaintiff which in turn resulted in perjured Garda evidence being given at his trial for allegedly permitting drugs to be sold in his licensed premises in Co. Donegal in 1992. That perjury procured his conviction by a jury. What followed as a consequence for the plaintiff was a tormenting saga of imprisonment, mental and physical deterioration, estrangement from family, loss of business, public and professional ignominy and despair. Furthermore, as the learned High Court Judge put it, “[T]he plaintiff was sacrificed in order to assist the career ambitions of a number of members of the Garda Síochána.”
Driven by the injustice of his situation he finally obtained an Order setting aside his conviction by the Court of Criminal Appeal in November 1992 when the D.P.P., for reasons that were never disclosed to that Court, consented to such an Order. Finally in July 2002 the Court of Criminal Appeal certified that he had been the subject of a miscarriage of justice. In proceedings subsequently initiated before the High Court he was awarded damages for the wrongs which he has suffered. He has appealed against the award of damages made by the High Court on the grounds that those damages are inadequate. The sole issue in this appeal therefore concerns the amount of compensatory damages and exemplary or punitive damages to which he is entitled.

Unfortunately, the conduct of the Garda officers before, during and following the trial and associated circumstances cannot but reflect negatively on the Garda Síochána.

However, it must also be borne in mind, that there are currently upwards of 12,000 members of An Garda Síochána serving in the community. The Garda Síochána, having as its role the maintenance of law and order, the enforcement of the law and protecting the security of the State, is an institution which, since its foundation in 1922, has been an essential part of our democratic fabric.

Its members, as over 80 years of history records, have served the community with dedication and often with great bravery at the risk of or actual loss of life. Exceptional or spectacular successes in combating crime are usually well publicised but on a day to day basis the individual Garda member invariably works unpublicised within all sections of the community but particularly on the margins of society where they have to confront determined criminals willing to use every means at their disposal, including wanton violence, to further their ends. They are the first line of defence against hardened criminals who have not the slightest regard for the interests of the individual citizen be they young or old. On a daily basis, or rather on a nightly basis, they may have to confront, in a whole range of situations from street crime to domestic violence, individuals, drunk or otherwise, who are hostile or offensive towards them. Its members in these difficult situations traditionally exercise their powers with discipline and restraint.

There are also a myriad of situations in which the Garda member must undertake, as a matter of duty, difficult and personally painful tasks whether it be the recovery and handling of a decomposed body from a river or premises, removing a mutilated body of a person or child from a crashed motorcar or informing a parent or spouse of the death of a loved one. They also serve the community in what might be called a more positive role such as by way their programme of support for the victims of crime, the Garda Primary Schools Programme, the Youth Diversion Project which has as its aim the rehabilitation of young offenders, support for neighbourhood watch schemes, to name but some of the forces’ direct community projects.

As I have already mentioned much of the day to day dedication of members of the Garda force in difficult circumstances goes unpublicised and perhaps unrecognised. Nonetheless it is because of its consistent tradition of dedicated public service that the Garda Síochána has obtained and retains to this day the general support and respect of the community at large.

Unfortunately, as experience in this country and other countries demonstrate, departures, sometimes the gravest of deviations, from normal standards of conduct and professionalism occur in police forces. Left unchecked there is always a risk that low standards will infect elements of such a force.

One cannot but be aware of reports of the evidence placed before and being enquired into by the Morris Tribunal in relation to Garda conduct and operations in Co. Donegal. Neither that evidence, nor any interim findings of the Tribunal, are before us but the facts and circumstances of this case emanate from that county and involve specific individuals who were serving members of An Garda Síochána at the relevant time.

The conduct of those two members probably constitutes the gravest dereliction of duty and abuse of power that one could ever fearfully contemplate would be engaged in by servants of the State and officers of law and order. Partly, but by no means solely, because they have sullied the reputation of the Garda Síochána the gravest view must be taken of their conduct.

This affair is regrettably a stain of the darkest dye on the otherwise generally fine tradition of the institution of An Garda Síochána. The facts and circumstances are a pot of iniquity which may be seen by some as reflecting on the Garda Síochána as a whole much to the potential demoralisation of upstanding members of the force which constitute the vast majority. Such a broad conclusion would be an unwarranted and disproportionate response to this affair however badly it may be viewed. The force is replete with dedicated and highly professional members. There is no suggestion in these proceedings that the traditional respect for the authority of An Garda Síochána generally, so important to the community at large, should be set aside.

However, this affair cannot be bracketed as a couple of bad apples in the proverbial barrel. The misconduct penetrated the system of law enforcement too deeply and persisted over too long a period to be discounted in such a fashion. Concrete independent evidence of the wrongful conspiracy against Mr. Shortt only emerged in the course of an official Garda investigation into affairs in Donegal. The matters concerning Mr. Shortt may only have been a rather small part of that investigation but the lack of immediacy or action in response to the evidence which emerged concerning his trial does raise such questions as to whether there is some complacency at different levels in An Garda Síochána with regard to the exacting standards of integrity which must at all times be observed by its members. The cavalier manner in which those two members set about concocting evidence and subsequently persisted in trying to cover up their misdeeds, not entirely out of sight of other Garda members, displayed a worrying confidence on their part that they could get away with it.

These are not matters with which this Court are directly concerned in these proceedings although the gravity of the abuse of power involved is a material factor in determining any question relating to exemplary or punitive damages.

Ambit of the plaintiff’s claim as set out in his Statement of Claim

The ambit of the plaintiff’s claim for damages as set out in his Statement of Claim, although these were presented in a more focused form at the hearing before the High Court, were as follows:

“1. Damages pursuant to the provisions of s. 9 of the Criminal Procedure Act, 1993, as certified by the Court of Criminal Appeal in its judgment of the 31st July, 2002.
2. Damages for breach of the plaintiff’s constitutional rights including, but not confined to the rights of the plaintiff pursuant to Article 40.3 and Article 41 of Bunreacht na hÉireann.
3. Damages for conspiracy.
4. Damages for negligence and breach of duty.
5. Damages for malicious prosecution.
6. Damages for false imprisonment.
7. Damage for loss of reputation including, but not confined to, damages for libel and slander.
8. Damages for deliberate and conscious abuse of statutory powers.
9. In respect of each claim for damages at (1), (2), (7) above, aggravated and / or exemplary damages.
10. Interest pursuant to statute.
11. Costs.”
Damages awarded in the High Court
At the conclusion of his judgment the learned High Court Judge awarded the appellant the following damages:

“1. General damages of common law: €5,000.00
2. General damages under
Criminal Procedure Act, 1993 s. 9(2): €500,000.00
3. Exemplary damages: €50,000.00
4. Special damages under
Criminal Procedure Act, 1993 s. 9(1): Legal Fees €12,650.00
5. Loss of the Point Inn and the Caravan Park: €806,221.00
6. Loss of nett of tax profits at the Point Inn: €550,000.00
Total €1,923,871.00”
The appellant has appealed each of the heads of damage awarded by the learned High Court Judge, other than that awarded for legal fees, on the ground, inter alia, that they were inadequate. The appellant, in his Notice of Appeal, also put in issue the findings that the conduct of the Gardaí in relation to attendances at the appellant’s premises, the setting up of roadblocks in the area of his premises in 1992 and the operation carried out by the Gardaí at his premises on 3rd August, 1992 did not constitute an abuse of powers.
Early background facts – The plaintiff and the Point Inn

First of all I think it should be emphasised that in these proceedings the State has not suggested that there are any grounds whatsoever for impugning Mr. Shortt’s essential good character or his standing as a citizen of this country. He had, in the past, been in breach of the licensing laws in serving alcohol after hours but there was no suggestion that he had ever been involved in serious criminal activity, let alone been involved with the sale of drugs on his premises. On the contrary his evidence that he cooperated freely with the Gardaí with a view to detecting any illegal use or dealing in drugs was not challenged.

Neither has the State contested the facts relating to the procurement of his conviction, its subsequent quashing and the consequences for the plaintiff personally, other than certain financial consequences.

The plaintiff was born in 1935. He is a chartered accountant by profession and in his early professional career was associated with Kennedy Crowley & Co., subsequently Stokes Kennedy Crowley, Chartered Accountants. He married in 1967. There are five surviving children of the marriage, one young son having died in a tragic accident. Following his marriage he went to Canada where he worked, inter alia, for well-established firms of chartered accountants. He returned to Ireland in December 1970. On his return he became involved in running, in conjunction with a brother Louis, a licensed premises known as the Point Inn, Quigley’s Point, Co. Donegal. The Point Inn had been owned by his great-grandfather, his grandfather and then his father. His brother died in 1991 and for a while he was not involved in running the business but eventually, at the end of 1991, he and his wife became full owners of the Inn. At that time in 1991 the business of the Inn had run down and was not trading well. He closed the premises and with the aid of a mortgage of £50,000.00 on his family home it was re-equipped, renovated and re-opened in April 1992. While the bar operated every night a discotheque / cabaret operated one night per week. The vast majority of the clientele came from across the border. Across the road from the Point Inn was an eight acre site and in 1989 the plaintiff sought and obtained planning permission for a caravan park.

The nightclub aspect of the business was for a short period conducted under the style “The Dungeon” and by May 1992 had changed its name to “Rave in the Cave”. From the opening of the newly revamped nightclub aspect of the business in April 1992 difficulties arose between the plaintiff and the local Gardaí.

In summary these difficulties commenced on the opening night when the nightclub was visited by Sergeant John McPhillips who, on leaving the premises told the plaintiff, in the hearing of patrons, “get your house in order”. The plaintiff failed to receive an explanation for this statement. (But as the learned trial Judge found, it may have been a reference to the fact that there had been several breaches of the laws on opening hours by the plaintiff.) He raised this matter subsequently at a meeting with Superintendent Kenny, the Garda officer in charge of the district, who agreed to look into the events of the opening night. At that stage no mention of illegal drugs was made. However on subsequent weekends in May and June the nightclub was the subject of a visitation by Sergeant McPhillips with, on most occasions, seven or eight Gardaí. There was also evidence of a Garda checkpoint being set up approximately one mile from the Point Inn for the purpose of checking people who might be going there. The occupants of cars were asked if they were going to the Point Inn and if they said so their cars were searched. Following complaints and representations by the plaintiff to the Superintendent a meeting took place between them in the earlier part of June 1992 at which it was agreed that undercover Gardaí would attend at the premises to address the possibility of illicit use or dealing in drugs there. Apparently this took place regularly until early August. In the meantime, then Inspector Lennon, later to become Superintendent Lennon, one of the chief figures in this case, attended the premises of the plaintiff on 21st June and spoke to him about the possibility of illegal drugs being on the premises.

On the night of 3rd August, the August Bank Holiday weekend, the Gardaí raided the nightclub at about 12:30 a.m. in the morning. The plaintiff first of all observed a group of men wearing helmets and visors running out of the car park towards the main entrance of the nightclub. He then observed that they were Gardaí. The plaintiff was knocked out of the way by the first Garda. There were about 60 Garda in all. Most were wearing helmets with their visors down and carrying flash lamps. Other Gardaí broke into two emergency exits with sledgehammers. Patrons were manhandled, and some male patrons were searched and had their pants pulled down. All of this lasted an hour. Some 10 or 12 patrons were arrested but it transpired that none were subsequently charged with any offence. The plaintiff made a complaint to Superintendent Kenny following this incident which was reported at that time in the Derry Journal. Following this incident undercover Gardaí continued to attend the premises.

In September 1992 the annual sitting of the District Court for the licensing of licensed premises took place and during September the plaintiff received notification from the Gardaí of their intention to object to the renewal of his liquor license, dancing license and restaurant certificate.

Shortly after that he was served with 32 summonses containing charges which alleged that the plaintiff had knowingly allowed the dealing of drugs on his premises on various specified dates.

On 18th September, 1992, following objection from the Gardaí, the District Court refused to renew the licenses in question. The plaintiff appealed to the Circuit Court and continued trading pending the appeal. The appeal to the Circuit Court was later adjourned from time to time pending the outcome of the criminal prosecutions.

From charge to trial

For the purpose of assessing damages pursuant to s. 9 of the Act of 1993 the High Court deemed the 1st October, 1992 to be the date on which the plaintiff was charged with criminal offences.

In February 1993 Gardaí, numbering between 80 and 100, raided the plaintiff’s premises in a similar fashion to the earlier substantial raid. It lasted about 1½ hours. There were a number of arrests and some tablets were found. Again on that occasion doors were broken in. The plaintiff complained to the Minister for Justice and the Garda Complaints Board arising from this raid. He felt his premises were being unfairly targeted and that the operation was out of proportion to any perceived problem.

In or about this time a threat was made on the plaintiff’s life by the IRA and he closed the premises on 8th September, 1993. He opened the premises during the Christmas period and the threat was repeated in early January 1994 and the premises closed again. In evidence before the High Court the plaintiff expressed his belief that the threats arose as a result of the adverse publicity following the Garda raids. The premises reopened in April 1994 and throughout the summer of 1994 there were regular Garda roadblocks in the vicinity of the premises.

On 30th September, 1994 the third major Garda raid occurred with this time with well over 100 Gardaí participating. The raid was conducted in a manner similar to the two previous major raids. Doors, tables and other items on the premises were damaged. A number of arrests were made and searches were conducted in the car park.

Having appeared before the District Court on a number of occasions in February 1993 the plaintiff elected for trial in the Circuit Court before a Judge and jury. On the application of the D.P.P. the plaintiff’s trial was transferred to Dublin.

The first trial commenced in late October 1994 but was aborted due to prejudicial reporting in the newspapers.

The plaintiff gave evidence of having suffered a great deal of stress at the time both because of the offensive nature of the publicity, its damage to his business as well as the fact that the first trial was aborted.

In July 1994 the plaintiff found he was unable to insure the Point Inn premises. Furthermore, he was under risk of losing his license for the premises. He placed the Point Inn on the market at the asking price of £500,000.00. No sale was concluded and the plaintiff believed this to be due to prospective purchases awaiting the outcome of the trial in the belief that the premises could be obtained at a lesser price if he should be convicted.

The trial

The plaintiff’s trial on criminal charges commenced in February 1995 and lasted eight days.

He was convicted and sentenced to three years imprisonment and fined £10,000.00.

He was to serve 27 months in prison.

Before referring to the course of events subsequent to the plaintiff’s conviction and those which ultimately led to that conviction being quashed I think it is convenient to set out here the factors which tainted his trial and led to a perversion of the course of justice.

These factors consisted mainly of conspiracy to provide false evidence and perjury at the trial.

The case for the prosecution was set out in the Statements of Witnesses for the Prosecution contained in what is known as the Book of Evidence.

The prosecution’s case contained fundamental weaknesses which were identified by counsel for the D.P.P. in an advice on proofs furnished to the Chief State Solicitor in advance of the trial. This advice on proofs was furnished to Detective Garda McMahon and Superintendent Lennon. I think it is sufficient for present purposes to refer to the principal deficiency in the evidence identified by counsel namely the absence of any evidence, specifically in the statement of Detective Garda McMahon, that the accused, Mr. Shortt, saw and permitted illicit transactions of drugs on the premises. This would have been a key element in any case against Mr. Shortt and was so identified by counsel for the D.P.P. Detective Garda McMahon was the primary witness for the prosecution with regard to the alleged drug dealing on the Point Inn premises.

This identified weakness in the case for the prosecution was the genesis of the conspiracy and perjury which was to follow in the lead up to and at the trial.

Full details of the nature and context of all these events are set out in the judgment of the Court of Criminal Appeal in Shortt –v- D.P.P. delivered by Hardiman J. on 31st July, 2002. The terms of that judgment were relied upon by the plaintiff in these proceedings without objection by the State.

In general terms what occurred was that Superintendent Lennon, who had been in charge of operations in relation to the plaintiff and the Point Inn, and Detective Garda McMahon, with a view to filling the lacuna in the prosecution case, set about preparing a second witness statement which would be served on Mr. Shortt before his trial as notice of additional evidence which Detective Garda McMahon would give at the trial. A number of meetings took place between Superintendent Lennon and Detective Garda McMahon with regard to the preparation and concoction of this second statement both in the former’s office and, on one occasion, in Detective Garda McMahon’s home where a version of the statement was actually typed up. A first version of the second statement which had been drawn up by Detective Garda McMahon did not, in the eyes of Superintendent Lennon, go far enough. As a result of proposals made by Superintendent Lennon the Detective Garda duly included further additions to the second statement which purported to say, inter alia, that certain illicit drug transactions which he saw taking place in the Point Inn also occurred within the view of or within “eyeshot” of the plaintiff. This additional evidence was intended to copper-fasten the case against Mr. Shortt.

In the event, Detective Garda McMahon gave such evidence at the trial. As the Judge at that trial told the jury Detective Garda McMahon’s evidence was the key evidence for the prosecution. At the trial Detective Garda McMahon was strongly cross-examined on this evidence, as well as other evidence. For the purpose of giving evidence he had recourse to his notes which he stated at the trial were contemporaneous notes. He also gave evidence that the second statement was drawn up from his actual recollection of what took place at the time.

We now know that to be false evidence as found by the Court of Criminal Appeal. He also deliberately concealed from the Judge and jury and the defence at the trial, by way of false evidence, the original notes concerning his visits to the plaintiff’s premises and all notes and documentary material relating to the drawing up of the second statement all of which emerged much later and were before the Court of Criminal Appeal. These latter included notes annotated by Superintendent Lennon with a view to the concoction of further evidence that Detective Garda McMahon would give at the trial. The Court of Criminal Appeal concluded that this principal part of the additional evidence of Detective Garda McMahon was false and untrue. It also concluded that both he and Superintendent Lennon concealed this at the hearing before the Court of Criminal Appeal.

What occurred can only be characterised as a conspiracy between the two Garda officers to defeat the ends of justice in which they both stood over perjured evidence given at the trial.

Much later in the aftermath of the trial these circumstances were to give rise to tensions, recriminations and bitterness between Superintendent Lennon and Detective Garda McMahon.

Superintendent Lennon exploited the dubious success of his operations and conviction by putting himself forward and obtaining a Garda award for his professionalism. With this in turn he sought and obtained public acclamation through the media.

Bitter at Superintendent Lennon getting exclusive credit when he had to do the nasty work Detective Garda McMahon was to tell his wife that he committed perjury when giving evidence at Frank Shortt’s trial, as Mrs. McMahon stated in her evidence which was accepted by the Court of Criminal Appeal. She had previously told this to the Garda investigation but a note of her account appears to have been lost sight of until it emerged in the course of that hearing before the Court of Criminal Appeal.

Another bizarre twist in the aftermath of this trial was some four years later when as a result of tensions between the former conspirators a “letter of satisfaction”, as it was described in the Court of Criminal Appeal, came into existence, one particular draft of which was drafted by Superintendent Lennon himself. This was a proposed letter that Detective Garda McMahon was to write to Superintendent Lennon the substance of which was to declare that he, Detective Garda McMahon, had no information prejudicial to the career of Superintendent Lennon and that he had never known the Superintendent to act unlawfully in the course of any Garda operation. The Court of Criminal Appeal described this letter as evidence of an awareness on the part of Superintendent Lennon that his actions in the procurement of the additional statement were unlawful and if revealed would gravely damage his career.

I mention these latter matters in order to recall how both Superintendent Lennon and Detective Garda McMahon were determined in their persistence post-trial to cover up and conceal any perjury which took place at the trial itself and this was continued up to and including the hearing before the Court of Criminal Appeal.

The victim of the machinations was of course Mr. Shortt himself who had to suffer through them in the knowledge that the evidence in question was false.

Immediate aftermath of the trial

At the conclusion of the trial the plaintiff was convicted on 13 counts and sentenced to three years imprisonment on each count, to run concurrently and fined a sum of £10,000.00. His first appeal to the Court of Criminal Appeal against conviction and sentence was unsuccessful except for the removal of the fine. He served 27 months in prison.

There were still a number of summonses outstanding against the plaintiff and he was brought back to Court from prison on a number of occasions in connection with these summonses but in the end prosecutions were never proceeded with. Nonetheless he had been returned for trial on the other charges and the prosecution for them was hanging over him for a considerable period of time.

This appeal on the issue of damages is of course based on the findings of fact in the High Court.

I think it is necessary to set out in this judgment, as regards the matters which arose after the conviction, those facts, as recounted in the evidence of the plaintiff, which the learned trial Judge accepted.

First of all there is the immediate incarceration of the plaintiff in the aftermath of his conviction:

“Following his conviction the Plaintiff was handcuffed in court and taken down. The trial and conviction received widespread publicity. He was photographed being taken away from court. He was taken to Mountjoy Prison. At Mountjoy Prison he was required to strip and shower and was given prison garb comprising denim pants and a denim shirt which were too big for him. He was placed in a cell with two other prisoners shortly to be joined by two other prisoners. He felt threatened by the presence of the other prisoners who were in their twenties the Plaintiff himself then being sixty years of age. For the second night and the following twelve weeks he had a cell to himself. This cell was in the old prison and measured 10’ x 7’. It was in disrepair. It had one window high up. The floor was of lino badly burnt and unclean. His bed had a thin horse hair mattress. There was a stench. The cell was infested with mice and cockroaches. There were no washing or toilet facilities. The toilet was a small aluminium soup pot. He was confined to the cell for seventeen hours each day. He had to slop out each day in the toilet area the floor of which was generally covered with urine, excreta and vomit. He was allowed out of the cell to collect his meals which he then took back to the cell to consume. Apart from taking air in the exercise yard in the morning and afternoon he read in his cell. He found it difficult to cope with his loss of freedom. On a number of occasions he was taken back to the Four Courts in relation to outstanding summonses. On these occasions he was placed in a holding cell with some twenty other prisoners which cell was in a deplorable condition.”
Subsequent period in prison
“While in prison the Plaintiff suffered from illness. In the gym he damaged his arm and shoulders and was prescribed pain killers. These had a severe effect on his stomach. There was a gradual increase in the pain in his neck and shoulders and he continued to suffer from stomach problems with cramps and vomiting and sleep disturbance. This continued for some seven months before he was sent to the Mater Hospital. The neck and shoulder symptoms were diagnosed as related to his work in the gym. He was treated with injections of cortisone. About this time he applied for temporary release to attend the baptism of his grandchild but was refused. He sought temporary release to attend his daughter’s 13th birthday party on the 23rd August 1995 but was again refused. From the first day he entered into Mountjoy he developed depression and was consistently depressed for most of the first two months. Thereafter his depression was intermittent. He was treated by prescribed medication. He was given tablets to help him sleep but after time was able to dispense with these. In prison he also suffered from vertigo and high blood pressure. He practised meditation twenty minutes each morning and each night to help him cope with his situation and this gave him relief.
While in prison he saw a television programme “Drugs in Donegal” in which Superintendent Kevin Lennon appeared in front of the ruins of the Point Inn and stated that the proprietor was then currently serving a term of imprisonment in relation to illegal drugs. This upset him greatly. Also there were several violent incidents in the prison which upset him greatly.”

The plaintiff’s wife also gave evidence concerning the effect of imprisonment on him. As the learned trial Judge recorded when she first visited the plaintiff in prison he looked completely different and “was shocked and looked terrible and was angry and upset”. When she visited him in prison subsequently she saw his condition deteriorate to the point “where he was an old man and like a zombie. She did not think he would survive his prison term. When released from prison the plaintiff was in good form but later on went into another state of depression as he was too old to go and look for a job. He had no income and no prospects. His sole income was a disability allowance”.
The question of dropping his appeal

“In October 1995 his appeal was pending and a proposal was communicated to him. If he should drop his appeal the State would not proceed on six outstanding charges pending against him and he would be transferred to an open prison and shortly thereafter released to join his family. He did not accept the offer. At this time also the six outstanding charges were proceeding. By this stage he had lost some 2½ stone in weight which he attributed to stress, anxiety and depression.”
This is but one of the particularly nefarious aspects of this case. The prospect of early release was dangled in front of the plaintiff when he was most vulnerable and open to emotional blackmail. The intent can only have been to avoid any further judicial scrutiny of the case by pressuring the plaintiff to accept the finding of guilt in return for a sort of “deal”. Formally at least, only the D.P.P. could withdraw the outstanding charges. Understandably the legal advisors of the plaintiff advised him of the advantages of going ahead with such a deal. Attractive as it may have seemed, the plaintiff made what was for him an emotionally charged decision to maintain his appeal and reject the approach in order to vindicate his innocence. Who was involved in making this offer of a “deal” to the plaintiff and how the fulfilment of a promise to drop outstanding charges and ensure early release could have been achieved was never explored or explained in the evidence.
Temporary release and family life

“His first fourteen applications for temporary release were refused. Christmas was a particularly depressing period and he greatly missed his family. He was allowed weekly visits from his wife but following each visit he would sink into a state of depression and so he asked her to cut down on the number of visits. He had a concern that his situation was affecting his children. He had school reports in respect of his son Christian that he was cheeky and a negative influence on other students and on Ezeriah that he was unsettled and careless in concentration. They were having fights as a result of other children calling the Plaintiff a drug dealer. At this time Christian was 14 and Ezeriah 12 years of age.”
While the plaintiff was in prison the evidence was that his wife continued to run the Point Inn until it had to be closed down permanently after it had been set on fire. It was effectively common case that the fire had been caused by subversive elements in reaction to the adverse publicity given to the plaintiff by reason of his alleged drug dealings. The plaintiff’s wife had a prisoners’ wife’s allowance and to provide an income she took work as a nurse doing night duty. She also gave evidence that the great relationship with the plaintiff had prior to his imprisonment with the children never really recovered after his release.
Unsuccessful appeal and continued imprisonment

“The Plaintiff’s appeal against conviction and sentence was heard on the 13th May 1996 and Judgment was reserved. The Plaintiff was optimistic about the outcome. Judgment was delivered late in July of that year and the conviction was affirmed and the only benefit to the Plaintiff was that he was relieved of the monetary penalty.
Having spent twelve weeks in the cell which I have previously described the Plaintiff was moved to the Training Unit in Mountjoy and remained there subject to one interruption until the first week of January 1997 when he was transferred to Castlerea Prison where he finished his sentence on the 14th May 1997 and was released. The interruption related to a period of twelve weeks when he was transferred back to the main prison for disciplinary reasons. In the Training Unit he had a cell of his own. The cell was quite new and comfortable. The building was new. He had wash up facilities but not a toilet. If he wished to go to the toilet he pressed a bell and was normally let out. The officers were more civil than in the main prison except for one officer who was a bully and gave him “a lot of grief”. Dining was in the dining hall. If he wished he could take the food back to his cell. He undertook two courses one in creative writing and one in computers. While the leaflet which he was given about courses promised remission if a prisoner applied himself he received no remission. He did however receive temporary release for four days at his second Christmas and shortly thereafter was transferred to Castlerea which was described as an open prison. The prison itself was surrounded by a high wall but it was open in the sense that the prisoners lived in newly constructed detached houses and conditions were much better than in Mountjoy. There were no educational facilities there and no library. He spent his time walking in a circle around the yard.”

Medical problems and release
“In March 1997 he had further medical problems related to high blood pressure and developed vertigo. He had a heart problem before he went to prison but this deteriorated while in Castlerea. On examination it was found that his heart was missing every seventh beat. His consultant attributed this to stress. While in Castlerea Prison the Plaintiff got temporary release every weekend. On one weekend however he suffered a back injury and was unable to return. A medical certificate was sent to the prison. However the Gardaí arrived at his house and checked that he was in bed. He returned to prison four days late on a walking stick. As a result of this incident his release date which was scheduled for May 2nd 1997 was cancelled. In fact he was released some two weeks later which was two weeks earlier than his actual release date.”
Post-release experiences
“On release from prison the Plaintiff found himself practically bankrupt without a job or business. He had received nothing out of the receivership. He was at risk of being struck off by his Institute [The Institute of Chartered Accountants]. He was now almost 63 years of age and he was depressed and angry at what had occurred to him and his family and in despair. He applied for and was given disability benefit on the basis of his back. He was treated with anti depressant medication. He was obsessed with establishing that he was not guilty and with clearing his name. Within his own community he felt ostracised. He was viewed like a pariah. He attended Mass and Holy Communion every Sunday but felt he was being cold shouldered by the congregation and stopped going to the church. He did not socialise. His relationship with his children had been damaged and they were no longer there for him as in the past.
After his release he set about a malicious injury claim in respect of the destruction of the Point Inn. For this purpose a certificate is required from the Chief Superintendent of the Gardaí and he had very considerable difficulty getting this. Some three years following his release passed before the certificate came to hand. The claim was defended by Donegal County Council in that they relied on the Malicious Injury Act 1981 section 12 to reduce or exclude compensation upon the basis that the Point Inn had been used for illegal purposes as evidenced by the Plaintiff’s conviction for knowingly allowing the sale, supply, distribution and possession of controlled drugs on the premises and further that there may have been a direct connection between the use of the premises for illegal purposes and the attack thereon which caused the damage. This added to his sufferings and concerns. The plea was only withdrawn on the date of the hearing after his conviction had been set aside. This compounded the delay by the Garda authorities in issuing the necessary certificate which did not issue for two years and nine months following application for the same.”

Application to the Court of Criminal Appeal pursuant to the Criminal Procedure Act, 1993
In November 2000 the plaintiff’s application to the Court of Criminal Appeal pursuant to s. 2 of the Criminal Procedure Act, 1993 was heard and there being no objection from the D.P.P. his conviction was quashed.

In May 2002 the plaintiff’s application to the Court of Criminal Appeal pursuant to s. 1(9), regarding a miscarriage of justice, was heard by the Court of Criminal Appeal. The decision certifying that there had been a miscarriage of justice was delivered in July 2002. During all this period the plaintiff was suffering from severe stress and anxiety.

Circumstances following the setting aside of the conviction and the grant of a Certificate of Miscarriage of Justice

Following the setting aside of his conviction and the granting of the certificate by the Court of Criminal Appeal the learned trial Judge noted that the attitude of the majority of the community in the plaintiff’s locality towards the plaintiff had improved but not of all the community. He went on to record:

“He now mixes very little with that community. He has returned to Mass. He is still not working. The main reason for this is that he continues to have trouble with his back and also has had to spend a very considerable amount of time assisting his legal team for the present case. Having regard to his age it would be difficult to get a job. He remains angry at what has happened to him. Prior to the events giving rise to this claim the Plaintiff had a drink problem. In 1988 he was admitted to the Rutland Clinic after which he did not drink until May 1993 when he resumed drinking as a result of the actions of the Garda Síochána. Thereafter he continued to drink on and off until early in 2005. He is not drinking at the moment and had not had a drink for some six months. However in the course of this hearing he lapsed. The Plaintiff no longer suffers from vertigo or with his blood pressure. He still suffers with his heart and with his back.
A book of medical reports was put in evidence. It is sufficient for present purposes if I record the opinion of Professor Brian Lawlor, Consultant Psychiatrist following an assessment of the Plaintiff on the 15th September 2004 –

“Although Mr. Shortt has a normal mental state examination at present he has experienced significant emotional distress and two episodes of depression related to events surrounding his dramatic experiences of imprisonment and miscarriage of justice. The prognosis for his depressive episode should be relatively good with resolution of the underlying triggering events. There are ongoing feelings of anger and frustration regarding his experiences and he may benefit from supportive psychotherapy in this regard. The prognosis for his alcohol abuse is reasonably favourable as well as long as he maintains his aftercare programme. Once again resolution of the ongoing stressor should have a positive effect in this regard.”

In a report from the Plaintiff’s general practitioner, Dr. Daniel McGinley it is reported that the Plaintiff was having significant difficulties in acclimatising back to his home/family situation. There were relationship difficulties when he was released home. He found the situation stressful. No medication was prescribed in relation to this. On the 9th September 1997 the Plaintiff was prescribed anti depressant medication for depression and this was repeated on 15th October 1997 and in November 1997.”

The assessment of damages
As was pointed out on behalf of the plaintiff in the course of this appeal the principal basis of his claim is under s. 9 of the Criminal Procedure Act, 1993. The relevant parts of that section are as follows:

“(1) Where a person has been convicted of an offence and either …
(a) (ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that there has been a miscarriage of justice, …
the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person … unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.

(2) A person to whom subsection (1) relates shall have the option of applying for compensation or of instituting an action for damages arising out of the conviction.”
I think it is important to note at this point, that there was a substantial degree of agreement arrived at between the parties and approved of by the learned High Court Judge as to the approach to be adopted in respect of this claim under s. 9(2).
In his judgment the learned High Court Judge noted:

“As the parties are in agreement that I should assess damages pursuant to s. 9(2) of the Act in respect of the period commencing on the date on which the plaintiff was charged I propose to do this. I propose, as agreed between the parties, to adopt the approach in The Independent Assessor –v- O’Brien & Ors and make a single award of damages rather than to break the same down into a number of discreet heads of award in respect of various headings of claim which could be maintained at common law. Thus the plaintiff claims damages pursuant to the provisions of s. 9 of the Criminal Procedure Act, 1993 and I propose to make an award of damages on that basis insofar as the events in respect of which claim is made occurred after the plaintiff was charged. The plaintiff claims further or in the alternative damages for breach of constitutional rights, for conspiracy, for negligence and breach of duty, for malicious prosecution, for false imprisonment, for loss of reputation including but not confined to damages for libel and slander and damages for deliberate and conscious abuse of statutory powers. I do not propose to make awards under any of those headings in respect of anything which occurred after the plaintiff was charged notwithstanding that that evidence would entitle a claim on all or any of such basis to succeed in the alternative to the claim under s. 9. I will however have regard by analogy to the common law in relation to such claims insofar as the plaintiff claims damages and aggravated and / or exemplary damages in respect of his claim under s. 9. I adopt this approach upon the basis that the parties are in agreement that I should do so. … I propose adopting as the date of charge the 1st October, 1992.”
No issue has been raised in this appeal concerning the learned High Court Judge’s general approach as outlined above. The case referred to above by the learned High Court Judge, and relied upon by both parties, is an English decision in relation to the application of somewhat corresponding legislation in the United Kingdom. I do not consider it necessary to consider the English legislation or the decision interpreting it since the approach adopted by the learned High Court Judge, with the agreement of the parties, is consistent in my view with the terms of s. 9 as well as a logical and effective means of assessing damages where the facts and circumstances relating to the various potential heads of claim, within and without the ambit of the section, are inextricably interwoven. The issues in this appeal of course turn on the manner in which the learned High Court Judge assessed the damages in the course of that general approach rather than the approach itself.
It should however not be overlooked that s. 9 of the Act of 1993 provides, inter alia, for the institution of an action for damages arising out of the quashing of a conviction where the appropriate Court has certified, as has occurred in this case, that a newly discovered fact shows that there has been a miscarriage of justice. It is intended to provide a remedy where it was understood that no remedy existed. Thus it is entirely conceivable that a claim for compensation under s. 9 could arise where there is no other actionable wrong against the State or any other person there being no culpability or blameworthiness on their part. Thus a claim can arise, inter alia, where a conviction was quashed because of the existence of “a fact the significance of which was not appreciated by the convicted person or his advisers during the trial”. I do not think it is necessary to hypothesise by way of example since it is self-evident that such circumstances, and indeed other circumstances envisaged by the section, could arise without actionable culpability on the part of any other person. Thus it is far from the case that every claim brought pursuant to s. 9 would attract aggravated or exemplary damages.

I mention this to emphasise, although it hardly needs emphasis, that there are especially grave features of this case which give rise to the level of damages which I feel it is appropriate to award. In this case the actual or potential other causes of action which the appellant could have pursued for malicious prosecution, unlawful conspiracy and so on became amalgamated in the elements which the High Court took into account when awarding compensatory damages pursuant to s. 9 of the Act of 1993. As the trial Judge himself acknowledged there were “several torts comprised in the claim”.

These special features, which in turn have particular relevance to the quantum of aggravated and exemplary damages, included the malice and dishonesty of the Garda members involved including their concealment of evidence, the abuse of power, conduct calculated to undermine a fair trial, the cruel treatment of the appellant when imprisoned concerning compassionate leave, the physical and psychological effects of imprisonment which were exacerbated by the belief, which was correct, that his conviction and imprisonment had not been brought about by some dreadful error or mistake but by the male fide machinations of the Garda members involved. Coupled with the foregoing, the consequences included degradation of his family circumstances, public degradation in the eyes of the community, at least some of which was engendered by deliberate exploitation of the case for the purposes of publicity and self-advancement by a Garda Officer. The whole course of events changed permanently the course of his life and at an age where, and in circumstances where, even on release or ultimate vindication, it could never return to its normal course to any serious extent. His professional life and standing as an accountant was jeopardised.

Principles applicable to the award of damages

As already pointed out the loss or injury suffered by the plaintiff in this case, physical, moral and financial, were all associated with grievous wrongdoing and male fides on the part of the servants of the State. In these circumstances I am quite satisfied that the principles relating to the award of damages in tort or for breach of a constitutional right as set out by Finlay C.J. in Conway –v- Irish National Teachers Organisation [1991] 2 I.R. 305 at 317 are applicable to the assessment of damages in this case. I would add in passing, whether those principles would by analogy be applicable without qualification in a case of compensation pursuant to s. 9 for a miscarriage of justice where there was no other actionable wrong or culpability on the part of another person is not in issue. I do not suggest that it might be. It is just that the question does not arise, there being no serious issue between the parties (apart from one caveat on the part of the State to which I will refer subsequently) that those principles do apply in this case.

In Conway –v- INTO Finlay C.J. stated:

“In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case. They are:-
1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.
2. Aggravated damages, being compensatory damages increased by reason of
(a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or

(c) conduct of the wrongdoer and / or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.

Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.
3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered. I have purposely used the above phrase “punitive or exemplary damages” because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be recognised as constituting the same element.”
I think it is convenient here to emphasise, as Finlay C.J. went on to point out, that exemplary damages and punitive damages are synonomous and that is the position in our law notwithstanding the decision of the High Court in Kennedy –v- Ireland [1987] I.R. 587. This was also the approach adopted by this Court in McIntyre –v- Lewis [1991] I.R. 121.
Compensatory damages

On the basis of the principles laid down in Conway –v- INTO (cited above) the two aspects of compensatory damages, general damages and aggravated damages arise for consideration in this case. In his judgment the learned trial Judge having acknowledged that aggravated damages represent, inter alia, a recognition of the cavalier or outrageous conduct of a defendant, went on to exclude the making of an award under the heading of aggravated damages essentially for the following reasons stated in his judgment:

“However the Court must be diligent to ensure that there is no element of double compensation. The award of general damages by analogy to the common law in relation to those causes of action which the defendant’s conduct would constitute is intended to take account of injury to feelings, loss of dignity, humiliation, frustration, heplessness and despair including in the case of a claim under the 1993 Act despair at the failure of the criminal justice system. In these circumstances I do not think it appropriate to make an award under this heading.”
Undoubtedly the trial Judge was faced with a claim unprecedented in form and ambit, not governed by direct precedent, and he awarded a fairly substantial sum of €500,000.00 intended to reflect the loss and injury suffered by the plaintiff having regard to the inherently aggravating circumstances of the case.
As Finlay C.J. pointed out in the citation above, general damages, or ordinary compensatory damages are sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act. There may indeed be particular aspects of a wrong reflected in the level of ordinary compensatory damages which are closely connected or interwoven with other factors which could give rise to aggravated damages. It could be difficult for a jury or a trial Judge in awarding ordinary compensatory damages not to have regard to the fact that, for example, a deprivation of liberty had been carried out by Garda officers in abuse of the law or in a male fide manipulation of the due process of the law.

However, as the principles referred to make clear, ordinary compensation is designed to compensate the direct effects of the wrong on the person who suffered it.

On the other hand aggravated damages represent an augmentation of the ordinary compensatory damages by reason of the manner in which the wrong was committed, the conduct of the wrongdoer at the time and subsequent to the commission of the wrong or wrongs involved. Aggravated damages have also been described as constituting “… additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the tort is justifiably heightened by the manner in which or the motive for which the defendant did it.” (White, Irish Law of Damages Figure 1. p. 7; Butterworth (Ireland) Ltd. 1989).

In my view where there are clearly identifiable circumstances in a case of this nature which comprise the substantial aggravating factors referred to in the principles in Conway, allowing for the fact that the factors outlined there were not intended to be definitive, then compensation by way of aggravated damages must be included in the award.

A global figure for compensatory damages may well be appropriate where the circumstances of the case indicate that the factors giving rise to aggravated damages are relatively marginal to the substantive wrongs which entitle a plaintiff to ordinary compensatory damages.

Furthermore, in cases which warrant the award of aggravated damages and where the circumstances attenuant to the commission of the wrongs in cause are closely interwoven with the factors which give rise to such damages it may be appropriate to award a global figure for compensatory damages provided the award is expressly stated to include both ordinary and aggravated damages. In a court of trial at first instance it may well be preferable, in the circumstances of the case and in the discretion of the trial Judge, that the awards of ordinary compensatory damages and aggravated damages be separately identified under their respective heads. This would facilitate the review of such awards on appeal.

I think one must accept that in making these awards the distinction between serious elements of the wrong committed and aggravating factors may at times be a very fine one or indeed there may be an overlap. Thus, although ordinary compensatory damages and aggravated compensatory damages may be conceptually distinct it will often be difficult in practice to exclude overlapping elements in the assessment of ordinary compensatory damages to be paid to a plaintiff. The primary compensatory damages are the ordinary damages which may be increased by reason of the aggravating circumstances. For these reasons, and indeed as a matter of general principle, I agree with the submission by counsel for the State that where distinct amounts of damages are being awarded on the basis of both ordinary and aggravated damages the totality of any amounts attributed under these two headings should be considered with a view to ascertaining whether the total sum awarded represents fair compensation for the totality of the injury and loss suffered by the plaintiff. In Reddy –v- Bates [1984] ILRM 197 at 202, in a claim for personal injuries, loss and damage, this Court stated:

“… [I]n a case such as this, where damages are to be assessed under several headings, where the jury has added the various sums awarded and arrived at a total of damages, they should then consider this total sum, as should this Court and any appeal, for the purpose of ascertaining whether the total sum awarded is, in the circumstances of the case, fair compensation for the plaintiff for the injuries suffered, or whether it is out of all proportion to such circumstances.”
Such an approach, by way of analogy, in cases of this nature should obviate the risk of double compensation without undermining the entitlement of a plaintiff to damages under both headings.
The quantum of compensatory damages

First of all I propose to address, in the light of the principles outlined above, the amount which should be awarded by way of compensatory damages to the plaintiff, for the wrongs to which he was subjected, from the date of charge up to the trial in the High Court and having regard to the broad approach, agreed in the High Court, that all such loss would be deemed to be dealt with pursuant to s. 9 of the Act of 1993 by way of compensatory damages.

The facts as found by the learned trial Judge as regards the deprivation of liberty suffered by the plaintiff, the physical and mental distress, anxiety and other harmful effects as a result of the wrongs done to him speak for themselves and do not warrant detailed repitition.

From the time he was first charged with the offences for which he was wrongly convicted up to the time when he was granted his certificate of a miscarriage of justice by the Court of Criminal Appeal the plaintiff lived through a nightmare of kafkaesque proportions which enveloped his entire existence. Everything he stood for, had strived for or aspired to seemed set at nought. It is a nightmare from which he is only relatively recently emerged but he will never escape the full consequences of this dreadful and traumatic period in his life.

While there have been other significant awards for such wrongs as malicious prosecution and wrongful arrest none that I am aware of could be taken as a precedent for this case because the scope and scale of the wrong and suffering to which the plaintiff was subjected in this case extend far beyond any such case that has previously come before the Courts. In the absence of precedent I can understand why the learned trial Judge would have regard to damages awarded in the more serious of defamation cases. However, given that the wrongs and their consequences, physically and morally, suffered by the plaintiff go far beyond, in depth and breadth, those which could be suffered as a result of even the most serious defamation I think this was too limited an approach. The plaintiff suffered loss of liberty with all the ignominy of being condemned as a criminal by the State. His stress and anxiety was exacerbated by the fact that he knew it was done on foot of perjured evidence. He was affectively taunted by the offer of a “deal” to drop his appeal, and thereby publicly acknowledge his guilt in exchange for the prospect of early release and return to his family. His wife and children were tainted and the quality of his family life perhaps permanently affected. Certainly his family life and his relationship with his family were seriously damaged when his children were in their early teens. He will never recover that period of loss and distress. On his release his life has been consumed with establishing his innocence and vindicating his rights.

Hopefully the final conclusion of these proceedings will vindicate his reputation but the whole series of events which he has undergone have permanently changed the course of his life over a period and at an age where, even with these proceedings behind him, it can hardly return to its normal course to any serious extent. I have no doubt, having regard to the evidence, that the horrible traumas of these events is something with which he will always have to live.

I consider it is manifest that the damages which he should be awarded by way of ordinary compensatory damages must be very substantial and in my view he is entitled to general damages far in excess of that awarded in the High Court.

Aggravated damages

In the light of the facts of the case I am also of the view he is entitled to very substantial aggravated damages having regard to the principles set out in Conway and the considerations to which I have referred to above.

I feel that the appropriate approach in this case is to make a global award that includes ordinary general damages and aggravated damages.

Furthermore, although the plaintiff will never be able to put behind him completely the consequences of what he has gone through, physically and emotionally, I do not consider that there should be a separate assessment of general damages for any ongoing consequences in the future. In a Court of trial separate heads of damages for past and future loss may be appropriate principally to facilitate the review of an award of damages in this Court on appeal. In the circumstances of this case and for the purpose of this appeal I am satisfied that any future aspect of the plaintiff’s damages can be taken into account in the overall award of compensatory damages.

Again the facts and circumstances as found by the learned High Court Judge speak for themselves. The aggravating elements are manifest. The manner in which the wrongs in question were committed against the plaintiff involved an arrogant and oppressive abuse of power by recourse to perjury so as to undermine the due process of the law. This is compounded by the outrageous attempt to close down the plaintiff’s continued challenge to his conviction at a time when he was vulnerable, physically and psychologically, by means the offer of a move to an open prison, early release and the dropping of outstanding charges, the full truth of which we do not know. The two Garda officers concerned persisted in the denial and cover-up of their conspiracy and perjury to the very end, resisting with further perjury, the plaintiff’s final application to the Court of Criminal Appeal. The apology from the State came late in the day before this Court in these proceedings and can in my view have little effect on mitigating damages. On the contrary nothing has emerged which suggested that the State, including the Garda Síochána, were in any way agitated about setting right the wrongs inflicted on the plaintiff, other than finally not contesting liability in these proceedings.

Every wrong and every stage of every wrong suffered by the plaintiff was compounded by aggravating factors. The core element of those factors was the concoction and giving of perjured evidence by the Garda officers. There was a callous self-serving disregard for the plight of the plaintiff, and his family, throughout.

I am therefore wholly satisfied that a very substantial element of the plaintiff’s compensatory damages should comprise a sum for aggravated damages for the outrageous and arrogant manner in which the wrongs were inflicted on him, insofar as money can do it.

In these circumstances I have come to the conclusion that the plaintiff should be awarded the sum of €2,250,000.00 by way of compensatory damages to include aggravated damages.

Exemplary damages

As Finlay C.J. in Conway –v- INTO stated exemplary or punitive damages “are intended to mark the Court’s particular disapproval of the defendants conduct … [and the Court’s] decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages …”.

In the same case McCarthy J. stated:

“The purpose of awarding such damages is truly to make an example of the wrongdoer so as to show others that such wrongdoing will not be tolerated and, more to the point, will not be relieved on payment of merely compensatory damages.”
McCarthy J. then went on to state:
“The Constitution in guaranteeing rights imposes corresponding duties. In the instant case, the defendants in deliberately interfering with the plaintiff’s rights have failed in their own duties. Every member of the judiciary has made a public declaration to uphold the Constitution; it would be a singular failure to do so if the courts did not, in appropriate cases such as this, award such damages as to make an example of those who set at nought constitutional rights of others. As the Chief Justice has said, that is not to say that in every case, such as defamation or assault, where there is also, by definition, a breach of a constitutional right, there should be an award of exemplary damages. In my judgment there was here a compelling case for the award of such damages.”
I have no doubt that in this case the grounds for exemplary damages are compelling. Although the grounds of the plaintiff’s claims in this case were not laid as, or characterised as, breaches of constitutional rights per se, the conduct of the Garda officers involved set at nought core constitutional rights of the plaintiff to due process and a fair trial. However they are characterised he is entitled to such damages.
In McIntyre –v- Lewis [1991] 1 IR 121 at 134 Hederman J. stated:

“In cases like this, where there is an abuse of power by employees of the State the jury are entitled to award exemplary damages. One of the ways in which the rights of the citizen are vindicated, when subjected to oppressive conduct by the employees of the State, is by an award of exemplary damages.”
In the same case McCarthy J. observed:
“In my opinion, the damages appropriate to a case of this kind must reflect the proper indignation of the public at this conduct, whatever windfall it may prove for the plaintiff in the result.”
Exemplary damages are not compensatory. They are, in a sense, a windfall for the plaintiff. Exemplary damages serve several potential purposes including to mark the Court’s disapproval of outrageous conduct on the part of a defendant. In the case of a jury they may reflect the indignation of ordinary law abiding citizens at such conduct.
They are also punitive, as the dicta above state. They may financially punish a defendant as a deterrent to that defendant as well as a deterrent generally to the arrogant use or abuse of power. In their purely punitive dimension the means of a defendant may be relevant in order to ensure that the punishment is proportionate. However the purely punitive element of these damages is hardly relevant where the State is the defendant since no individual, let alone those persons who have actually committed the wrong, will bear responsibilty for paying any of the damages. The liability of the State to pay arises from its vicarious responsibility for its servants or agents and the payment of damages is made out of public funds.

This of course does not relieve the State from its liability for such damages (see for example McIntyre –v- Lewis cited above). The award of exemplary damages is, in the words of Finlay C.J. in Conway, “one of the most effective deterent powers which a civil court has: the award of exemplary or punitive damages.” It is a power which must be available to the Court where there is serious abuse of power by or on behalf of the State. Such an award against the State, in appropriate cases, marks the Court’s public disapproval of abuse of power so as to demonstrate that such wrongdoing will not be tolerated. Although in the form of a financial penalty it is in substance also a moral sanction, a mirror to “the proper indignation of the public”. Such damages remind the other organs of State that there is not only a duty to compensate a wronged citizen by way of monetary damages but to take all steps necessary designed to ensure, as far as practicable, that such deliberate abuse of power is not repeated but is prevented.

In awarding exemplary or punitive damages a Court is at large as to the amount which it considers appropriate to express its disapproval and therefore it must exercise any such power with restraint. The amount awarded should be no more than is necessitated to convey in this case, to the State, and the public at large, the level of its disapproval in the light of the gravity of the State’s conduct. In my view this can only be achieved in this case by making a separate and distinct award for exemplary damages.

In the Conway case Finlay C.J. also observed that exemplary damages, as a general principle, “should not be awarded if in the opinion of the Court the amount necessarily payable by the wrongdoer in the form of compensatory damages constituted a sufficient public disapproval of and punishment for the particular form of his wrongdoing.”

In McIntyre –v- Lewis (at 141) O’Flaherty J. stated:

“If the compensatory amount awarded includes aggravated damages then I believe if any award is made by way of exemplary damages it should properly be a fraction rather than a multiple of the amount awarded by way of compensatory damages (including aggravated damages).”
The statement of Finlay C.J. means that the Court has a wide discretion in determining the circumstances in which a separate award for exemplary damages ought or ought not to be made. The factor he refers to may have special, though not exclusive, relevance to a case in which the means of the defendant are pertinent. However, in this case I am quite satisfied that a substantial award of exemplary damages is necessary notwithstanding the level of compensatory damages that is being awarded. It is necessary in order to fully vindicate the rights of the plaintiff in the circumstances but also as a mark of disapproval of the calculated conduct of the servants of the State.
It is also worthy of note that the State altered their position on the issue of exemplary damages. They had argued in the High Court and initially in this Court that where substantial compensatory damages are awarded to a plaintiff any exemplary damages must be of a strictly limited amount since it would involve double compensation. In the course of this appeal they abandoned this approach accepting, quite properly, that exemplary damages are a distinct and separate concept from compensatory damages.

Because of the distinction and for the reasons already outlined exemplary damages cannot be characterised as involving double compensation. Such damages may in a sense constitute a windfall for the plaintiff by reason of the fact that they are not compensatory in nature. The Court’s discretion to award exemplary damages as necessitated by the circumstances of a case is not limited by any so-called risk of double compensation. Certainly, as Finlay C.J. pointed out and I have also acknowledged in this judgment, in certain circumstances the substantial level of compensatory damages may be a factor to be taken into account when the Court is exercising its discretion as to the exemplary damages necessitated by the need to mark its disapproval of the defendants conduct but the notion of double compensation has nothing to do with that.

The statement above of O’Flaherty J. was made in the context of a cautionary approach which he correctly felt the Courts should follow with regard to the award of exemplary damages. However I do not agree that the discretion of the Court in awarding exemplary damages in a case where it otherwise feels it proper to do so should invariably be constrained by a rule that they be a fraction of the compensatory, including aggravated, damages awarded. The discretion of a Court to award exemplary damages in the vindication of rights and as a mark of its disapproval of the conduct of a defendant, should not be constrained in that manner but exercised according to the circumstances of each case even if in many cases the appropriate award of exemplary damages might well be a fraction of the overall compensatory damages.

While generally speaking there was no issue as to the principles to be applied in determining the damages to be awarded to the plaintiff, counsel for the State in this appeal at one point submitted that where outrageous conduct for which exemplary or punitive damges may be awarded is conduct for which the State is only vicariously liable the level of exemplary damages payable by the State should be mitigated or restricted by reason of the vicarious nature of the liability.

It was a somewhat tentative submission or at least not one pursued with great vigour. In any event I do not think it is an argument that requires great scrutiny. As McCarthy J. also said in McIntyre –v- Lewis (cited above), in the context of an award of punitive damages, “If the liability to damages be vicarious, as the employer of the primary tortfeasor, then the liability is for the entire of the damages.” Moreover, the State acts through its servants or agents and its responsibility is only engaged when wrongs are committed by its servants or agents. If counsel’s proposition was correct the Court would be circumscribed in its jurisdiction to award exemplary or punitive damages appropriate for deliberate and outrageous abuse of public powers by servants of the State. The power of the Court to make an award for exemplary or punitive damages was clearly set out in Conway –v- INTO. The statement of McCarthy J. is patently correct. There is no basis in law for limit the liability of the State to pay exemplary damages by reason of the vicarious nature of its liability. To do so would be absurd and contrary to the well-established principles and purpose of such damages. Indeed in exercising its consitutional function to defend and vindicate the rights of individuals the power of the Court to award exemplary or punitive damages against the State in appropriate circumstances is, as the decisions of this Court demonstrate, of fundamental importance.

The quantum of exemplary damages

Not every aggravated or even malicious breach of rights requires an award of exemplary damages. They are not damages to which a plaintiff is entitled to as a claim of right. It is in principle a matter for the trial Judge in the first instance to determine, in the exercise of his discretion, whether an award of exemplary damages is necessitated by the special need to achieve or provide for the purposes which exemplary or punitive damages serve, as outlined above. Not every case of grave or aggravated breach of rights will necessitate such damages.

I consider that the grounds for awarding substantial exemplary damages in this case are compelling. Those grounds hardly need further elaboration involving as they did the undermining of the due process of law and inveigling, with perjured evidence, a jury of citizens, faithfully doing their duty, to convict an innocent man. They have also undermined the reputation of an important State body, An Garda Síochána. On a number of occasions I have referred above to the especially grave features of the acts committed by the Garda members in this case. Indeed the case is such an exceptional, egregious one that so manifestly calls for such an award that it is not a case in which is in any sense borderline or one which required any finer points of law concerning the liability to award such damages to be argued. Although I agree with the views of McCarthy J. in McIntyre -v- Lewis, that the restriction of exemplary damages to certain categories of cases as stated by Lord Devlin in Rookes –v- Barnard [1964] AC 1129 has no application in our law, that question does not need to be addressed in this case, if it needs to be further addressed at all. Here we have conduct particularly necessitating condemnation.

In all the circumstances of the case I am quite satisfied that a very substantial award of exemplary or punitive damages is warranted against the defendants. In my view it should be in the amount of €1,000,000.00.

The quantum of special damages

The plaintiff’s claim to financial loss focused on loss of earnings from the Point Inn and the loss of capital value of the Point Inn and the capital value of the caravan park, which is the site across the road from the Point Inn for which the plaintiff had obtained planning permission for its development as a caravan park.

The plaintiff’s claims for special damages were not straightforward ones for the learned trial Judge to evaluate because of the state of the evidence and a number of imponderables to which it gave rise.

In the High Court there was at first an issue between the plaintiff and the defendants concerning a causal link between the circumstances in which the plaintiff was prosecuted, convicted and imprisoned and some of these financial losses. The learned High Court Judge resolved that issue by concluding that the plaintiff had established a causal nexus between the events of which he complained and the closing of the Point Inn, the fire there and its sale together with the caravan park by the receiver. The reasons for his conclusions are set out in his judgment and the liability of the defendants for the financial loss as found by the learned trial Judge is not challenged by them in this appeal.

What is put in issue by the plaintiff is the amount of the damages awarded by the learned trial Judge for (a) loss of net tax profits at the Point Inn, for which he awarded €550,000.00 and (b) capital loss of the Point Inn and caravan park for which he awarded a net sum of €806,221.00. A sum awarded for €12,650.00 legal fees is not in issue.

As regards loss of earnings from the Point Inn, or as it was put in evidence the loss of profits net of tax from it, the learned trial Judge found that the accountant, Mr. Peelo, who gave evidence for the plaintiff and the accountant, Mr. Jackson, who gave evidence for the defendant were effectively ad idem as regards the loss of profits up to March 2003, the claim for loss of profits from the caravan park having been abandoned. Having evaluated the evidence before him the learned trial Judge ascribed a total of €550,000.00 under this head of damage allowing for damages up to the date of trial. I do not consider that the plaintiff has established that there was any error in the manner in which the learned trial Judge arrived at this figure. Loss of future earnings did not arise because of the plaintiff’s claim for capital value of the loss of the Point Inn and the caravan park.

As regards the capital value of the caravan park the plaintiff’s valuer, Mr. Younge, initially placed a value of €400,000.00 which he revised upwards to €560,000.00 on the basis of comparisons which he made with other caravan parks which had been sold in different parts of the country. The learned trial Judge accepted the evidence that the plaintiff’s site was less attractive than the sites with which comparisons were made. He also had to take account of the fact that those other sites were sold in a developed state and he had no satisfactory evidence of the current cost of developing the plaintiff’s site. He decided to discount the approach adopted by the defendants’ valuer, Mr. Morrissey, essentially because the evidence required to carry out a valuation exercise based on such an approach was not before him. Accordingly he adopted the approach of Mr. Younge but discounted his valuation for failing to take sufficiently into account the differences between the plaintiff’s site and the comparator sites. He also took into account the fact that any valuation of the caravan park would be influenced by the cost of development at then current figures and he had no evidence of this. On that basis he attributed a value of €350,000.00 to the caravan park. On the facts found by the trial Judge he was entitled to come to this valuation and I find no grounds for interfering with it.

As regards the valuation for the Point Inn he was critical of Mr. Younge’s valuation of €1,150,000.00 because the valuer was misinformed as regards the number of nights per week which the discotheque operated and that was an important element in his valuation.

The defendants’ valuer, Mr. Morrissey, had approached the valuation of the Point Inn on a different basis, concentrating on turnover. The trial Judge was in turn critical of this valuation, in particular because it did not take into account any potential for the premises and also because it took into account the stigma attached to the premises by reason of its licensing history, that is to say, the two endorsements on the license and the objection to the renewal of the pending licensing application. He concluded that since prospective purchasers had an assurance that an objection renewal would not be maintained against a new owner neither of the latter considerations were likely to affect a purchaser. Mr. Morrissey’s valuation was €630,000.00. The learned trial Judge therefore decided that he should make some adjustment to the approach of each valuer. He identified the factors which he took into account in doing so and those which he excluded and in particular gave preference essentially the approach of Mr. Morrissey based on turnover with some adjustments because of factors which the valuer ought not to have taken into account and his failure to take into account of potential. On this basis he arrived at a figure of €700,000.00 for the Point Inn. The plaintiff has complained that not enough was allowed for the potential development of the Inn but the trial Judge’s approach to this element was entirely justified by the evidence.

This gave a total value of the Point Inn and the caravan park of €1,050,000.00 from which certain figures fell to be deducted. These figures related to the proceeds of the malicious injury claim made by the plaintiff, the repayment of the grant to the International Fund for Ireland and payments made to the plaintiff’s creditors. I do not think any criticism can be made in respect of these deductions. This left a net loss of €806,221.00 in respect of the Point Inn and the caravan park for which the plaintiff was entitled to be compensated.

In assessing the plaintiff’s losses for loss of profits at €550,000.00 and his loss in respect of the Point Inn and the caravan park at €806,221.00 the learned trial Judge relied on facts which he was entitled to find on the basis of the evidence before him. Insofar as he relied on inferences drawn from those facts I am also satisfied that those inferences were reasonable and correct.

Accordingly the plaintiff’s appeal against the learned trial Judge’s findings in relation to special damages fails.

General damages for events prior to 1st October, 1992

This head of damage, described as damages at common law by the learned trial Judge, is confined to the period from 18th April, 1992 until 1st October, 1992 the latter being the date deemed by the learned trial Judge to be the one on which charges were brought against the plaintiff. The assessment of all other damages related to matters which occurred after 1st October, 1992 and were dealt with as falling within the ambit of the plaintiff’s claim pursuant to s. 9 of the Act of 1993.

Under this heading the learned trial Judge awarded the sum of €5,000.00 damages to the plaintiff and those damages relate to the plaintiff’s claim for alleged wrongful conduct on the part of the defendants, their servants or agents, in connection with the searched and raids on the Point Inn by the Gardaí as well as the roadblocks on the main road from Derry to the Point Inn on a number of occasions, all of which the plaintiff claimed damaged his business. The claim for damages under this head included damages for physical damage done to the plaintiff’s premises in the conducting of searches.

As was the case in relation to other heads of damage the findings of fact necessary to determine the issue as to damages is primarily a matter for the trial Judge having regard to the evidence before him.

As regards the conduct of the Gardaí in relation to the roadblocks, searches and raids of the plaintiff’s premises complained of, the learned trial Judge concluded that he was not satisfied, on the evidence before him, that the Garda operations were an abuse of powers or motivated by any improper purpose. He took into account the fact that subsequent events might suggest an improper purpose and he was perfectly entitled, in his evaluation of the evidence before him, to conclude, as he did, that the plaintiff had not discharged the onus of proof in relation to these matters. He did however conclude that the breaking of some furniture on the plaintiff’s premises during the course of a raid and the breaking down of an emergency exit door was wrongful and could not reasonably be considered incidental to the powers conferred on the Gardaí by a search warrant. In the absence of any evidence being tendered as to the actual loss sustained by reason of the property being damaged his assessment of €5,000.00 under this head seems to me entirely reasonable. I would uphold that finding.

Conclusion

In conclusion I would allow the appeal of the plaintiff on the issue of damages and find that the damages to which he is entitled to recover from the defendants may be summarised as follows:

1. General damages (pre-October 1992 claim): €5,000.00
2. General damages including aggravated
damages (post-October 1992 claim): €2,250,000.00
3. Exemplary damages: €1,000,000.00
4. Special damages :
a. Legal Fees €12,650.00
b. Loss of profits at Point Inn €550,000.00
c. Loss of Point Inn and caravan Park €806,221.00

Accordingly I would allow the appeal and substitute an award of a total of €4,623,871.00 to the plaintiff against the defendants.
JUDGMENT of Mr. Justice Hardiman delivered the 21st day of March, 2007.
Introduction.
This is a most serious, tragic and alarming case. It has been before the Courts now, in one form or another, for nearly fourteen years. The plaintiff/appellant Mr. Francis Shortt was framed by gardaí on drug offences in 1995, and given a three year sentence. His life was almost totally ruined and he was reduced to a state of despair. At that nadir of his fortunes he found the strength to reject an offer of early release, on the condition that he dropped his appeal and thereby acknowledged his guilt: the Court has heard no explanation of how, why and on whose authority this offer came to be made to him. He lost his first appeal. After a long struggle, conducted by dedicated legal advisers, the prosecution quite suddenly, and without any substantive explanation, consented to his conviction being quashed, in November 2000, some years after his release. After another interval of years, in July 2002, he succeeded after a long hearing in having the conviction declared a miscarriage of justice: his application for this declaration was opposed with perjured evidence by gardaí. The Court is now concerned with the question of compensation for the plaintiff, the victim of what the authorities conceded on this appeal was the worst known example of oppression of a citizen by the State.

This is Mr. Shortt’s appeal from the assessment of damages by the learned President of the High Court. It is necessary, before addressing the question of compensation, to survey the facts of the case and their consequences.

On the 17th of May, 2006, the second and final day of the hearing of this appeal, leading counsel for the defendants Mr. Michael Cush S.C. resumed his submissions with the announcement that he would be saying, as he aptly put it, “something by way of apology to Mr. Shortt”. At the conclusion of his submissions he said that he wished to:
“… take the opportunity to say that the State acknowledges that Mr. Frank Shortt was the victim of a grave miscarriage of justice. For that and for all his suffering and loss in consequence the State apologises to him unreservedly”.

This apology was tendered some fourteen years after the start of the chain of events which led to Mr. Shortt being wrongfully convicted of drug offences on the basis of consciously false garda evidence, eleven years after he was sentenced, five and a half years after his conviction was quashed by the consent of the Director of Public Prosecutions, and just under four years after the declaration by the Court of Criminal Appeal that his conviction was a miscarriage of justice. The apology was both belated and limited in the sense that no apology of any kind was offered until the surprise of the Court at its absence was made clear the previous day. The apology is carefully drafted, does not refer to Mr. Shortt’s innocence, and does not purport to be offered on behalf of An Garda Síochána. The plaintiff accepted it, in words both dignified and pointed, “in the spirit in which it was offered”.

The reading of this apology was (apart from the judgment of the Court) the last act in an extraordinary fourteen year history which saw Mr. Shortt, then a 60 year old Chartered Accountant and business man, and the father of five children then aged from 12 to 22, perjured into prison by gardaí. They seem to have borne him no personal ill will: they did it for the purpose of furthering their own careers, and in particular that of their commander and mentor Inspector, later Superintendent, Kevin Lennon. Lennon inspired the perjury and gave it a form and coherence which his principal coadjutor, Detective Garda Noel McMahon, was himself incapable of achieving.
PART I
What the Gardaí did and how it came to light.
The set up.
On the 31st July, 2002, the Court of Criminal Appeal gave judgment in Mr. Shortt’s application to have his conviction deemed a miscarriage of justice. This application was hotly contested by the gardaí most directly involved and required seventeen days of oral hearing before the Court of Criminal Appeal. In the judgment of that Court there is set out in very considerable detail the precise working of the conspiracy between certain gardai to frame Mr. Shortt, the subsequent steps taken to prevent this coming to light, and later again to prevent the conviction being deemed a miscarriage of justice. The judgment is long, running in its original form to 117 of typescript excluding Appendices. It is reported at [2002] 2 I.R. 686. It is unfortunate, for present purposes, that the editors of the official Reports, in an attempt to save space, drastically edited the factual portions of the judgment, focussing mainly on the legal issues involved. I do not say that by way of criticism: the concern of the Irish Reports is with legal issues. But it means that there is no printed record of the detailed findings of the Court of Criminal Appeal in this uniquely grave case. It would be wasteful to set out here precisely the same material as is set out in the Court of Criminal Appeal judgment. I propose to offer only a brief summary. However, the judgment of the Court of Criminal Appeal and the various appendices to it are available in the office of that Court. I wish to emphasise that no-one can hope to form a full and complete view of the conspiracy deployed against Mr. Shortt without reading that judgment in full.

Having said that, I will attempt to summarise what occurred as follows:
The Point Inn premises were closed for renovations after the death of Mr. Shortt’s brother in 1991 and reopened on the 18th April, 1992. Almost immediately, it became clear that a problem existed with drug dealing in the premises, in particular the presence of drug dealers from Northern Ireland. This problem was acknowledged both by the gardaí and by Mr. Shortt and was the subject of considerable discussion, oral and written, between them. Eventually it was decided to address this problem by putting undercover gardaí into the premises at weekends over a period of some months. Noel McMahon was always present in an undercover capacity; Garda Tina Fowley was present on all but one such occasion. It was agreed at the trial that the topic of undercover gardaí had been discussed between Mr. Shortt and Superintendent Brian Kenny. Mr. Shortt said he was aware from this discussion that there would be undercover gardaí in the premises whereas Superintendent Kenny, agreeing that the matter had been discussed, said that he had not committed himself on this point. As will be seen, Mr. Shortt’s account of this matter received some unexpected support long after the trial.

Subsequent to a major raid on the premises in August, 1992, the gardaí charged Mr. Shortt with multiple charges of permitting his premises to be used for the sale of drugs on that and other occasions. Despite the large number of charges, when the case came to the District Court there was (according to McMahon) a “semi-deal” available to Mr. Shortt whereby he would be allowed to plead guilty to one charge and the matter would be dealt with by way of a fine. Mr. Shortt did not avail of this offer. It was then decided to have the matter dealt with on indictment in the Circuit Court. Mr. Shortt at all times protested his innocence of the charges in question. When a Book of Evidence was eventually produced it turned out that the case against him was very weak indeed, almost non-existent: on the hearing before the Court of Criminal Appeal counsel for the State conceded that there was then insufficient evidence to put Mr. Shortt on trial “on the statements”.

A vital development then occurred. Papers were sent to counsel to advise Proofs. Before a written advice was drafted, there was a lengthy meeting between State counsel and various gardaí in the Lake of Shadows Hotel near Buncranna. When counsel’s Advice of Proofs was received it pointed to the fact that the evidence in the garda statements was grossly inadequate to support the charges. As counsel said, the evidence available from the garda statements clearly established that drug dealing was taking place on the premises but it did not establish that Mr. Shortt was in any way involved in or tolerant of this. Portions of the evidence, indeed, were open to the construction that he was not aware of it. In so advising, counsel was doing no more than her duty to her client, the Director of Public Prosecutions.

This Advice of Proofs came to hand in September, 1994. It presented the gardaí with an acute dilemma: a trial date had been fixed for October, 1994, and here was State counsel telling them that, on the Book of Evidence, they had no case. Certain gardaí then engaged in a conspiracy to transform a very weak case into a very strong one by inventing evidence. This was done cleverly and cold bloodedly, in a manner fully described in the judgment of the Court of Criminal Appeal.

The result of this conspiracy emerges clearly in the judgment of the Court of Criminal Appeal. It can be seen very easily, simply by comparing the original statements of McMahon and Fowley with their subsequent statements, served as additional evidence. The judgment of the Court of Criminal Appeal contains a tabular summary tracing the changes in the Garda account contained in the original contemporary notes (concealed at the trial) through the initial statements to their eventual additional evidence. It is noteworthy that the statements of McMahon and of Fowley were altered in a very similar way.

This, however, was not easily done. Although one would have thought it perfectly plain from the Advice of Proofs what the shortcomings in McMahon’s evidence were, he found it difficult to come up with a new statement which would support the prosecution case. Accordingly, he brought his statement to a meeting with Lennon in a garda station. Lennon took the statement and, in his own handwriting, indicated the necessary alterations. Some of his instructions are in unambiguous terms such as “Where is Shortt – say he was nearby”.

The statement of McMahon annotated by Lennon is an appendix to the judgment of the Court of Criminal Appeal.

Even with this fools guide, in Lennon’s handwriting on McMahon’s statement, the latter had serious difficulty in producing an acceptable version to be served as additional evidence. His eventual statement of additional evidence was produced not in a garda station but at a meeting in his own home attended by himself, Garda Fowley, another guard who did the typing and, for part of the time Inspector Lennon. He was called to the meeting because of a grave and unexpected difficulty which had arisen. The gardaí had told State counsel when they met her that on each occasion they were present undercover in the Point Inn the water supply had been turned off. The effect of this was to force customers, if they wanted water, to buy it from the bar. It is a recognised effect of the consumption of “speed” that it makes the consumer extremely thirsty. McMahon’s statement had several references to seeing large quantities of glasses of tap water being sold over the bar. The problem which arose was that in the statement of Garda Tina Fowley she described following a girl in to the ladies toilet and seeing her splitting a white tablet. The girl then “put one half into her mouth and washed it down with a drink of water from the wash basin”. If this was so then the detailed allegation the Gardaí made to State Counsel, recorded in the Advice of Proofs, was false.

Arising from the inconsistency between this statement and the allegation to counsel that the water had always been turned off it was decided simply not to pursue the latter allegation any further than they already had. This was done even though it had featured quite heavily in Lennon’s original plan: on the first page of McMahon’s statement he had written “You have to say that you drank numerous half pints of water from the [illegible] section of the bar. Who was filling the glasses of water from behind the bar etc.”.

The case then proceeded with McMahon and Fowley giving evidence in accordance with their new statements. The importance of their evidence is undisputed: the learned trial judge in the Circuit Court (His Honour Judge Buchanan) described McMahon’s evidence as the nub of the prosecution case, and so it was. McMahon was naturally cross-examined on how his first statement, which revealed no case at all against Mr. Shortt, had mutated into a second, which revealed a strong one. He claimed that the new version was the unaided product of his own memory. Asked what materials he used in writing his second statement he perjured himself by concealing the existence of his original notes which did not at all incriminate Mr. Shortt.

Mr. Shortt was then convicted and sentenced to three years imprisonment. His conviction related to thirteen only of the counts against him: the rest were held over. Later, when he was offered early release if he dropped his appeal, a further inducement held out to him was that these additional counts would be dropped. He was at that stage in fear that they would be proceeded with and he would receive a longer sentence.

It must be emphasised that the foregoing is the barest summary of the main findings of the Court of Criminal Appeal in relation to the framing of Mr. Shortt. There was also evidence that McMahon arranged with a woman who was an established garda informant to attend on the night of the raid in August, 1992, and plant drugs on the premises. In fact, she got drunk and did not turn up. Furthermore, McMahon alleged that he had bought drugs from a named person using marked sterling currency. This person was then arrested but the currency could not be found in the property store in Buncranna Garda Station when inquiries were later made, and it turned out that the custody record in relation to the person had been torn out of a bound book at the garda station. This, of course, would have shown what property he had on him on arrival there. Despite the allegation of widespread drug dealing, no person appears to have been convicted of such an offence in relation to the evening of the raid. I reiterate the necessity for anyone wishing to understand in detail what happened to Mr. Shortt to read the judgment of the Court of Criminal Appeal.
Consequences.
The consequences of these things to Mr. Francis (Frank) Shortt, were nothing less than life blighting. He suffered imprisonment for three years, less only statutory remission, his business and his reputation were ruined, his health suffered and his private and family life were severely affected. He was driven into a state of despair and for a period endured a dark night of the soul. His premises were burnt down by the I.R.A. He suffered intense feelings of shame and powerlessness, aggravated by his school going children being pilloried as the children of a drug dealer and by his wife, whom he had always supported appropriately, being compelled to apply for a social welfare allowance for the wives of prisoners. When, having served the sentence and suffered all the other consequences, he endeavoured to have his conviction declared a miscarriage of justice, he was opposed with further perjured evidence by members of An Garda Síochána, including the Superintendent. While the direct cause of these grotesque injustices was a conspiracy between a small number of members of An Garda Síochána, the attitude of the garda and prosecuting authorities was, to say the least of it, a grudging and insensitive one as will be seen.

The circumstances of this case, and the fact that the perpetrators of the grave wrong committed against Mr. Shortt were persons wearing the uniform of the State, aggravate the wrong done to him and give the affair a public as well as a private dimension. It is now possible to be categorical as to how this injustice was perpetrated: the details are set in the judgment of the Court of Criminal Appeal, and make for profoundly disturbing reading. Further details of the actions and attitudes of the State authorities, specifically the prosecution service and the Garda Síochána in the period 1992 – 1997 came to light on the hearing of this appeal and are discussed below. On the hearing of Mr. Shortt’s application for compensation the case he made was not contradicted in any way by those authorities and was accepted by the learned President.

Matters still unexplained.
But there are significant aspects of the case which are still unexplained. These include how it came about that Mr. Shortt was returned for trial on serious criminal charges, at the suit of the Director of Public Prosecutions, even though it was conceded in the Court of Criminal Appeal that there was then no sufficient case against him on the documents which had been produced; how, despite this state of affairs, Mr. Short was offered a “semi-deal” whereby the bulk of the charges would be dropped if he pleaded guilty to a single charge, with only minor consequences; how no alarm bells were set ringing by the sudden transformation of a very weak case into a very strong one by new statements from two members of An Garda Síochána containing material which they had inexplicably said nothing about until shortly before a trial date was fixed; how, while unjustly imprisoned, Mr. Shortt was offered various benefits, including early release, if he would drop his appeal and how a very important allegation of an admission of perjury by one of the gardaí involved, from a credible source, apparently escaped the attention of senior gardaí and prosecuting authorities for a considerable time. They did nothing about it. But the D.P.P., while unaware of this important evidence, nonetheless consented to the conviction being quashed, for reasons yet to emerge.

Motives.
Not the least alarming aspect of the case, touched on above, is that Mr. Shortt was framed by gardaí who, on all the evidence, bore him at first no personal ill, will simply in pursuit of an unscrupulous scheme to advance their careers, and in particular that of Superintendent Kevin Lennon. It was he who orchestrated the conspiracy to make a false case against Mr. Shortt and he had as his willing coadjutor Detective Garda Noel McMahon and perhaps another member. Each of the relevant gardaí was absolutely indifferent to the commission of perjury. McMahon, almost incredibly, at one point during his evidence in the Court of Criminal Appeal blamed, not himself or his superior, but Mr. Shortt’s original legal advisers for the sentence which he received:
“I might have expressed the fact that it is a shame a man of his age put himself in a position or was put in that position by his legal team to serve time when it could have been resolved at District Court level”.

On the face of it, Mr. Shortt would have appeared an unpromising candidate for the sort of set up of which he was the victim. He was a sixty year old family man, a professionally qualified accountant, a Fellow of the Institute of Chartered Accountants, and a well known businessman in the North Donegal area. Yet he was successfully framed, with all the consequences set out above. It is also noteworthy that a witness told the Court of Criminal Appeal, with retrospective incredulity, that Lennon was spoken of in Donegal Garda circles as a possible future Commissioner of An Garda Síochána.

Admission of perjury drops out of sight.
Another major theme in the judgment of the Court of Criminal Appeal was the evidence of Mrs. Sheenagh McMahon which, for the reasons set out in that judgment, the Court accepted as truthful and very largely accurate. A very significant part of her evidence related to admissions to perjury made to her by Detective Garda McMahon. This evidence is important for three quite separate reasons.

In evidence to the Court of Criminal Appeal Mrs. McMahon said that Detective Garda McMahon was “upset in front of me about Mr. Shortt, his conviction, he didn’t think that Mr. Shortt was going to get three years… I don’t think that he was upset about the fact he was convicted, but he was definitely upset at the fact that he was put in jail for three years… he said he didn’t expect him to get three years.” She also said that Detective Garda McMahon had said “… that it was his evidence that convicted Francis Shortt and without his evidence Francis Shortt wouldn’t have went to jail” (sic). She was asked whether the Detective Garda had said anything else, whereupon she paused and said “He told me that he had perjured himself in court… and that he had done it for Kevin Lennon to help him get promotion”.

This was clearly very significant evidence. The Court of Criminal Appeal was, however, constrained to treat it with great caution because the witness was the estranged wife of the Detective Garda and she appeared to be giving this account for the first time in the Court of Criminal Appeal, although she had been extensively interviewed by the Gardaí as part of Assistant Commissioner Carty’s Inquiry. She was questioned about this both by counsel and by the Court. She stoutly denied that she was saying it for the first time and maintained in the face of scepticism from counsel and the Court that she had given the same information to the Carty Inquiry. The Court, and the parties to the miscarriage of justice application had been given what was represented to be all the relevant papers from this Inquiry and there was no mention, direct or indirect, of this very significant allegation being made by Mrs. McMahon. But she appeared absolutely certain in court that she had made this allegation to Carty. The Court specifically asked counsel for the respondent:
“The question is now a very simple one: is there in any shape or form a signed or unsigned note of a mention of perjury by Mr. McMahon?”

Counsel for the Director of Public Prosecutions, who was fully alive to the importance of the matter replied:
“Not in any material we have from the Carty Inquiry…”.

The Court then asked:
“… Is there in any shape or form in any garda document a note of this lady mentioning the term ‘perjury’ or words to that effect?”.

Counsel replied:
“Certainly not that I have or that I am aware of…”.

Most unfortunately and embarrassingly, it transpired that counsel’s instructions were grossly deficient. Later in the day a separate memorandum of an interview with Mrs. McMahon was found and, in the words of counsel for the State:
“It does mention – what the witness says is correct”.

It transpired, precisely as Mrs. McMahon had said, the garda officers conducting the Inquiry had indeed decided that the allegation of perjury and cognate matters should be put into a separate document. The consequences of this for the present case are indeed very great. What she said was recorded in a separate memorandum of interview of the 15th September, 2000; as follows:
“Sheenagh McMahon then spoke about the Frank Shortt case. She stated that her husband had told her that Tina Fowley nearly ruined the case in court. Noel told her that he had committed perjury in the Court. She stated Kevin Lennon put Noel up to telling lies in the case. Sheenagh said that Tina Fowley could fill us in more on this matter. Noel told her that Frank Shortt did not deserve the sentence that he had received. She said that Frank Shortt had gone to Superintendent Brian Kenny in Buncranna and had requested him to put gardaí into the Point Inn in order to clear the place of drugs”.

The last sentence above precisely mirrors what Mr. Shortt said in his own defence at the trial. But it was contradicted by Garda evidence at the trial.

There is then a sentence which is difficult to believe that anyone concerned about policing matters in Donegal could have forgotten:
“Sheenagh McMahon stated that it was probably because of the false evidence given in the Frank Shortt that Tina Fowley blew the whistle on the McBrearty case”.

Three observations require to be made about this evidence.

If it is reliable, and the Court of Criminal Appeal has found that it was, it is evidence of an absolutely unique kind: an admission by a Detective Garda of premeditated perjury in an important criminal case.

Secondly, Mrs. McMahon’s credibility was greatly boosted by the fact that her account of having told the Carty Inquiry about the admission of perjury, and her persistence in this account in the face of manifest scepticism from the Court and from counsel for the authorities, was vindicated by the sudden production of the memorandum. It must have appeared to Mrs. McMahon that the authorities had deliberately decided to “bury” her account of September, 2000, and to deny that she had ever said anything of the sort. But she did not waiver in her account.

Thirdly, while the Court of Criminal Appeal for reasons set out in its judgment found that neither the garda authorities nor the Director of Public Prosecutions had deliberately concealed the memorandum, the fact that it was forgotten about and never acted upon is gravely disturbing. It should be said that Mrs. McMahon gave the account set out above to the gardaí only two months before the Director of Public Prosecutions consented to Mr. Shortt’s conviction being quashed. Nevertheless, counsel for the Director told the Court of Criminal Appeal that her account had not influenced the Director’s decision because, though he had received the memorandum, he had not read it at the time he took the decision to consent to the conviction being quashed. This, in turn, means that the Director had formed the view that the conviction was unsafe or unsatisfactory on grounds unrelated to the Detective Garda’s confession to perjury. The Court has no idea what these grounds were.

Apart from that, it is very surprising, to say the least, that so dramatic an allegation was not followed up. It was the gardaí who insisted that Mrs. McMahon’s account of the admission to perjury should not form part of her main statement but be separately recorded. This, presumably, was because of its sensitivity. But it had the consequence that the perjury allegation simply dropped out of sight. It did not form part of her principal statement, or of the edited version of that statement which was given to the Court and to Mr. Shortt’s advisers. It must surely have been communicated to the very highest levels of An Garda Síochána but nothing was done about it.

So thoroughly did this vital piece of information drop out of sight that solicitor and counsel for the authorities, at a hearing specifically directed to the question of whether Mr. Shortt’s conviction was a miscarriage of justice, were never told about it by the gardaí. These professional advisers were thus placed in a position of very great embarrassment without any fault on their part. It is only fair to add that, after this catastrophe, solicitor and counsel for the authorities placed the whole product of the Carty Inquiry before the Court of Criminal Appeal. This had the incidental effect that that Court could see the enormity of the task undertaken by Mr. Shortt’s legal advisers in trawling through documents running to many thousands of pages a considerable number of which were neither indexed nor paginated.

The Court can only regard the circumstances whereby Mrs. McMahon’s allegation simply dropped out of sight as indicative of grave insensitivity on the part of the authorities, an inexplicable failure to investigate the most relevant and serious allegation and a reluctance to contemplate the appalling prospect that Mr. Shortt had indeed been the victim of a campaign of perjury by gardaí. Even when the documentary evidence mentioned below came to light, the alleged confession to perjury remained uninvestigated.

Chance and Coincidence.
To conclude this survey of the case, attention must be drawn to the large element of chance and coincidence involved in the eventual vindication of Mr. Shortt. One of the gardaí involved, McMahon, was a man who drank to gross excess and when drunk and maudlin confessed his perjury to two of the witnesses who gave evidence in the Court of Criminal Appeal. Secondly, McMahon’s drinking problem, in the years following the Shortt case, made him into a “loose canon” from the point of view of his colleagues and superiors. There was, for example, a serious incident where he pointed a gun at another guard. But of more relevance to the present case was the fact that, according to Superintendent Lennon himself, a Sergeant in the Donegal Division, Sergeant Leheny, expressly threatened to destroy Lennon’s career on the basis of information which he claimed McMahon would supply when drunk. This extraordinary fact led to the creation of certain contemporary documents discussed below. Thirdly, there was something of a falling out between McMahon and Lennon over an apparently trivial cause: Lennon successfully nominated himself for a Divisional policing award wholly or mainly on the basis of the Shortt case: and McMahon bitterly resented this as he felt he should have had the award himself. Fourthly, the ill-feeling engendered by this dispute led Lennon to think that McMahon might make allegations against him and caused him to get McMahon to write a remarkable “letter of satisfaction” which is fully discussed in the judgment of the Court of Criminal Appeal. The same dispute and its consequences led McMahon to keep certain documents of a highly incriminating nature which he might otherwise have destroyed, including one clearly showing Lennon’s role in procuring the alteration of the garda evidence prior to the trial. McMahon kept this material because, in his own words used in a handwritten aide memoire to himself, he was afraid that “Lennon [was] shafting me”.

Documents.
The fact that these incriminating documents were preserved, precisely because they were obviously incriminating, by an experienced Detective Garda who fully understood their significance is one of the most remarkable features of a case with many extraordinary features. The documents themselves include:
(1) A group of “half sheets” being individual pieces of paper on which McMahon had written his original notes of his undercover activities in the Point Inn. The significance of them for present purposes is that they do not at all incriminate Mr. Shortt. They were concealed at the trial even in answer to a direct
question which, if truthfully answered, would have
involved revealing their existence.
(2) Noel McMahon’s original statement, again failing to
incriminate Mr. Shortt, with handwritten annotations
in Lennon’s handwriting showing how he was to be
incriminated in the second statement.
(3) A four page document in McMahon’s handwriting
which included the notation
“Point Inn – perjury – set up – advice of proofs –
Kevin Lennon had my note book”.
(4) Another document in McMahon’s handwriting,
headed “General”. According to the evidence in the
Court of Criminal Appeal this recorded what
Lennon told McMahon were the allegations
Sergeant Leheny was making against him, Lennon. They led to the ‘Letters of Satisfaction’ discussed below. Matters mentioned included an allegation about Lennon’s personal life, “Point Inn etc. etc.” and ‘Lennon shafting me’.
(5) The “Letters of Satisfaction”. These were two
drafts of a letter, one envisaging its being written
to Lennon himself by McMahon and the other
envisaging it being sent to Sergeant Leheny. Each
is an endorsement of Lennon’s character by McMahon and there is
a specific reference to the fact that McMahon had
never known Lennon “act illegally while
participating in any operation”.
They are very remarkable documents indeed and are Appendices to the judgment of the Court of Criminal Appeal. The first version was drafted by McMahon and the second by Lennon.
(6) Prosecuting counsel’s advice of proofs for the criminal trial. It is most unusual to be able to scrutinise this document, as it would normally be protected by privilege. Its importance for the present purposes includes that it demonstrates clearly that the gardaí were advised that they had no sufficient case against Mr. Shortt, leading them to set out to remedy this embarrassing state of affairs. It records aspects at least of what the gardaí told counsel in their long meeting at the Lake of Shadows Hotel, such as the information that the water was turned off in the premises. It does not appear from the advice of proofs that the information subsequently added to garda statements was narrated to counsel at the meeting. It should also be said, in relation to the advice of proofs, that of course a case could have been made against disclosing it on the basis that it was a privileged document. But it came to light, not by virtue of any process of disclosure or discovery, but because it was seized by the Carty team amongst other documents retained by McMahon. No objection was taken to its use during the hearing in the Court of Criminal Appeal. It was, together with other documents, vital in demonstrating the nature and detail of the conspiracy which occurred.

I stress, once more, that the judgment of the Court of Criminal Appeal is essential for an understanding of these documents.

Mrs. Sheenagh McMahon said that her husband had shown the “Letters of Satisfaction”, and in particular Lennon’s draft, to her and “said to me that this was the biggest mistake that Kevin Lennon made, and he said that that piece of paper was so important to him… he said he would never let that out of his hands”. McMahon and Lennon each knew that the other was a wholly unscrupulous person with no regard whatever for the oath or for the truth. Lennon agreed that he had got McMahon to write the “Letters of Satisfaction” as “insurance”. McMahon kept these incriminating documents because they incriminated Lennon as well as himself, so that if Lennon “shafted” him, he would be destroying himself as well. He hoped that this prospect would prevent Lennon “shafting” him.

It is essential to recall, though incriminating material about the set-up was preserved for the reasons mentioned above, it might never have come to light but for more widespread concerns about the activities of certain gardaí in Donegal. These are now notorious due to the reports of the Morris Tribunal and they had previous led to a high level garda inquiry. The Shortt case was only a very small part of that inquiry but the inquiry led to the Carthy team taking possession of the documents retained by McMahon. It also led to the first coming to notice of third party evidence to the effect that McMahon had perjured himself in Mr. Shortt’s case: most unfortunately this appears to have been lost sight of for a considerable time.
___________________________________________________________

It is important to note that the remarkable gravity of the case has now been recognised by all who dealt with it. The learned President described what had happened as “an outrageous abuse of power”. Counsel for the State on the hearing of the appeal said that Mr. Shortt’s case was the worst case of State oppression of a citizen of which the State defendants were aware. The consequences to Mr. Francis Shortt were appalling and cry out for vindication. Even apart from the outrageous damage to that unfortunate man, there must be grave public concern at the garda conspiracy against an innocent man and the calculated, fluent and plausible perjury which the gardaí engaged in, with total indifference to humanity or justice.
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PART II
Submissions on damages.
A change in the State’s position.
It must first be said that the State’s case as eventually argued in this Court was, on the very significant topic of exemplary damages, very different from that advanced before the learned President in the High Court. The State had contended that no award, or only a very limited award, should be made in respect of exemplary damages by reason of the size of the compensatory damages awarded and the risks of double compensation. In other words, the State had contended that a significant part, or perhaps the whole, of what is normally reflected under the heading of exemplary damages (where the question of exemplary damages arises at all) should be regarded as having been already covered by the awards under the heading of general damages. This submission found favour with the President who justified the award he made by remarking that he “must be conscious of double compensation”.

On the hearing of this appeal Mr. Michael Cush S.C. in the course of argument very properly withdrew this contention. It was proper to do this because damages awarded under this heading are different in kind from, and do not at all overlap with, general damages. This topic is fully discussed below. But since the Court is making a significant alteration in the damages awarded by the High Court, it is fair to point out that the difference is to a large degree accounted for by this change in the State’s attitude to a very important component of the compensation. The Court is quite satisfied that the State’s current approach is based on a correct assessment of the law on this topic.

The damages awarded by the learned President were all the subject of appeal to this Court. They were as follows:

Apart from the challenges to the special damages, which will be dealt with later, it was said that the sum of €500,000 for general damages was gravely inadequate. The award of €50,000 for exemplary damages was very small in the circumstances “extraordinarily so: it ought to be very very much expanded”. Exception was taken to the decision of the learned President not to award aggravated damages as a separate head of damages. Finally, there was a challenge to the award of €5,000 in respect of the claim for events from April, 1992, to the date on which the plaintiff was charged.

Submissions on Damages: the plaintiff’s case.
In relation to the sum of €500,000, Mr. Hugh Mohan S.C. for the plaintiff stressed the long period of time which this award had to cover. He said that the plaintiff had clearly “ticked all the boxes” for a very large award of general damages in respect of events which had gone on for a long time and said that the many different types of damage required detailed attention. The first and most important of these, counsel submitted, was the 27 months spent in jail. He emphasised the dreadful effect it had on the plaintiff as set out in his own evidence and that of his wife. Immediately upon conviction he was handcuffed, chained to a prison officer and removed to prison in a blaze of publicity. He spent two separate periods of twelve weeks in Mountjoy prison in terrible conditions and at times in the company of persons of whom he credibly alleged he was constantly frightened. Counsel stressed the effect of this in particular on a man over sixty years of age with no previous convictions and no previous exposure to the criminal elements with whom he was confronted in prison. In making these submissions counsel was able to refer to a prison diary kept by the plaintiff: it is not my intention to set out here extracts from what was a private document kept in part to preserve his sanity in the circumstances in which he found himself. But there can be no doubt that he suffered despair and extreme mental anguish. In the words of a medical report from a consultant retained by the defendants, he had inflicted on him “ongoing, relentless and continuing stress as a result of the events before during and after his trial”. Counsel referred to this doctor’s conclusion that it was “highly probable that the events from 1993 onwards contributed appreciably to a heart condition”. As mentioned above, the evidence of Mr. Shortt and his wife was not contradicted. Counsel particularly emphasised Mrs. Shortt’s evidence that her husband quite suddenly became an old man, and at times resembled “a zombie”.

Counsel emphasised certain other incidents of the imprisonment. It was undisputed that the plaintiff had been denied temporary release on at least fourteen occasions even though this privilege was accorded to people who he knew in prison who had been convicted of what appeared to be much more serious crimes. There was equally no contradiction of the plaintiff’s evidence as to what he had been told by way of explanation of this: his application had to go to the local Garda Superintendent, who was Superintendent Lennon, and that it was to be inferred that he had simply frustrated these applications. These refusals induced depression in the plaintiff for which he was prescribed medication at particularly bad moments, when, for example, he was refused temporary release on the birth of his first grandchild and refused again when his wife had to go into hospital leaving no adult at home to look after school going children.

Separately, Mr. Mohan made submissions on the damage to the plaintiff’s good name which he said was deliberate, severe and ongoing. Counsel referred to a book of press cuttings and indeed it is quite clear that, apart from the extensive publicity surrounding the major raid on his premises, the trial, and the sentencing, Mr. Shortt had lodged in the minds of journalists as an example of a drug dealer successfully dealt with: his name was used in connection with articles on drugs even long after the events at the Point Inn. It is equally clear that Superintendent Lennon made himself available to the media, both print and electronic, to talk and indeed to boast about the case. All this, said counsel, together with the stigmatising effect of conviction, had great damaged the plaintiff’s good name. Moreover, Mr. John Ward, Solicitor, who acted for Mr. Shortt in the appeal and in the miscarriage of justice application and in a malicious damages claim gave evidence that even after the conviction was quashed there were many in North Donegal who took the view that there was “no smoke without fire”.

Mr. Mohan then referred to the physical problems affecting the plaintiff and outlined the medical reports which were produced. He pointed out that the back, heart and (to some extent) psychological problems were ongoing. He had not been able to work since the events. He would continue to suffer from these problems into the future. Moreover his own self perception was gravely affected and, naturally, he thought with horror of all that had happened to him, if not on an hourly basis, then certainly on a daily basis.

In this regard Mr. Mohan particularly challenged the decision not to make an award of general damages into the future. He pointed out that the plaintiff’s own evidence, that of his wife and that in the medical reports all referred to suffering in the future.

Mr. Mohan was critical of the failure to make an award of aggravated damages. He stressed the criteria for such damages as set out in Conway v. The Irish National Teachers Organisation and Ors. [1991] 2 IR 305. He referred in particular to the criteria for the award of such damages as set out in the judgments in the Supreme Court in that case. Counsel submitted that Mr. Shortt met not one but all of these tests. He made lengthy submissions as to a portion of the President’s judgment which will be discussed below to the effect that the award of aggravated damages would amount to double compensation. In summary he said that the factors listed by the learned President at p.57 of his judgment as illustrating the apprehended double compensation all related to the plaintiff’s own feelings, whereas as the indicia for aggravated damages relate to the defendant’s behaviour and motivation.
Mr. Mohan put before the Court photographs of the Shortt family taken shortly before the plaintiff went into prison and another taken after he came out by way of emphasising just how long and how significant were the periods for which he lost out entirely on family life. Counsel also pointed to the very long duration of the affair as a whole, fourteen years from its inception until the hearing and pointed out that the awards had to reflect this.

Separately, Mr. Mohan made submissions on the question of exemplary damages. These, he felt, were very small indeed, very gravely inadequate. He questioned the learned President’s rationale for making only this small award and submitted that no question of “double compensation arose because exemplary damages were meant to be just that, exemplary or punitive, whereas the other headings were compensatory: there was no element of overlap”.

Mr. Mohan adopted the statements in the judgments in Conway and in particular those of Finlay C.J. and McCarthy J., as to the nature and purpose of an award of exemplary damages. In this connection he emphasised that after fourteen years there had been no apology. He referred to the case of de Rossa v. Independent Newspapers [1999] 4 IR 432. This was a defamation case where the plaintiff had been awarded £300,000. Counsel said that allowing for the change from punts to euros and changes in money values, the award for general damages here was approximately what Mr. de Rossa had got. Counsel emphasised that he was not in any way trivialising the libel on Mr. de Rossa which was very grave. He emphasised, however, that there was of course no question of imprisonment in Mr. de Rossa’s case or of the ongoing public humiliation which accompanies a stigmatising conviction. He emphasised also that Mr. de Rossa had gone on to have a successful career including becoming a member of Government and later of the European Parliament whereas Mr. Shortt was ruined and disgraced.

State’s submissions.
For the State, Mr. Michael Cush S.C. first said he was standing over all the figures in the learned President’s judgment. Speaking generally he reminded the Court of the standard of review: there could only be an uplift in damages if they bore no reasonable proportion to what this Court thought ought to be awarded. This was not disputed. Secondly, Mr. Cush submitted that there was no doubt but that the learned President fully appreciated what he was dealing with. He referred to a number of passages of the judgment including the President’s finding of “an outrageous abuse of power”. He emphasised that the judgment of the learned President had set out in eight headings all of the plaintiff’s complaints very fully. Thirdly, Mr. Cush submitted that there was no real dispute about the general approach appropriate to be taken to the assessment of damages and referred to the fact that his written submissions on this topic were not contradicted. Fourthly he submitted that the Court had to have regard to the totality of the award: “there should be some sort of checking off of the various elements”.

In relation to general damages Mr. Cush first submitted that a very large award for special damages had an effect in reduction of general damages. The reasoning he gave for this was that the extra earning power generated by a large sum of money awarded and received all at once. Even if that were not so in relation to certain headings of general damage, counsel said it was certainly true in respect of an award in relation to personal injuries.

Mr. Cush said that the sum of €500,000 awarded in general damages had to be regarded in the circumstances as including what might otherwise be regarded as aggravated damages. He referred again to the President’s list of eight headings at p.54 of the judgment and on a passage in the lower half of p.57. He conceded that the sentence containing the reference to “dual compensation”, would be a misstatement of law if it stood alone but in context it had to be read as a reference to the Conway factors of malice, oppression etc.

This point is an important one since it is relied upon to justify the omission to award aggravated damages.

Mr. Cush agreed that the de Rossa case was useful. He also agreed that the gravity of the wrong committed on the plaintiff in that case was of a lesser order than that committed in the present case. In answer to a question from the Court Mr. Cush said that Mr. Shortt’s case was the worst case of State oppression of an individual citizen of which the State was aware. He said that the absence of an apology was relevant both to exemplary and to aggravated damages.

Turning to the personal injuries aspect of the claim, Mr. Cush said that the plaintiff’s medical problems were over. When his attention was specifically drawn to the cardiologist’s report which seemed to contradict that view, counsel said that perhaps there should be “something” awarded by way of damages for personal injuries into the future in view of that.

Turning to the reputational aspects of the claim, Mr. Cush said that there were three major mitigating factors: the decision of the Court of Criminal Appeal declaring the conviction to have been a miscarriage of justice; the award made by the learned President; and the perception of gardaí in Donegal in the aftermath of Mr. Justice Morris’s very disturbing reports. Mr. Cush submitted that it was clear that all of these matters must have a rehabilitating effect on Mr. Shortt. The State’s reliance on the Morris Report as mitigating the damage to Mr. Shortt can only be on the basis of a view that the reputation of the force in that area is so damaged that an arrest by them, followed by a conviction based on their evidence, is devalued or lacks in credibility or is capable of being regarded as a set up.

Mr. Cush then turned to the topic of exemplary damages. The State’s original position had been that the approach of the President was correct: that is, it was correct to award only very limited exemplary damages having regard to the substantial award made in relation to compensatory damages and in order to avoid double compensation. However, almost immediately after embarking on this topic Mr. Cush said that the President had not been correct to consider the risk of double compensation as a factor capable of reducing the award of exemplary damages, simply because exemplary damages were not at all compensatory in nature. This was a major concession and a major alteration in the State’s case as argued in the High Court and at the commencement of the State’s submissions on appeal.

Mr. Cush submitted, however, that in the assessment of exemplary damages account had to be taken of the fact that the basis of the liability of the “paying parties” was vicarious and not direct. Mr. Cush immediately stated that there was no authority on this proposition but he submitted that it was nonetheless obviously true.

This is indeed a very far reaching submission. It is obvious that the State, Ireland, cannot itself permit perjury, conspire to frame a man on serious criminal charges or conspire to conceal misdeeds of that nature. It can only do so through the servants or agents of the State. Equally, it is beyond doubt that neither the present holders of the office of Attorney General and Commissioner of An Garda Síochána, nor their predecessors in 1994/95, were in any way personally aware of or complicit in the conspiracy which damnified Mr. Shortt. This is the usual position in claims of wrongful behaviour by the State. Accordingly, Mr. Cush’s submission amounts to saying that where a person suffers a tort of a sort egregious enough to attract exemplary damages, those damages should be reduced if the “paying party” is not himself personally responsible. In practise, that would mean a reduced scale of exemplary damages in respect of almost all misdeeds by public authorities grave enough to attract such damages in the first place.

Towards the end of his submissions on the first day of the hearing of this appeal, Mr. Cush referred to advice given to juries in defamation cases, that they should consider the purchasing power of any particular sum of money they had in mind to award. He made this reference in the context of discussion earlier in the day about the proposition that €500,000 would not buy a good two bedroomed flat in parts of Dublin. Mr. Cush said, however, that the purchasing power to be considered was that relating to premises in Donegal. However, at the start of his submissions on the second day, counsel said that he did not mean to imply that a lesser sum should be awarded to a person by reason of his being based in Donegal or any other rural location.

On the second day of the hearing, Mr. Cush first made the announcement already discussed about “something by way of apology to Mr. Shortt”. Continuing his submissions, Mr. Cush first submitted that the Common Law claims advanced by Mr. Shortt were simply “not proven” and that this could not be revisited on appeal. He stated again that awards of general damages in outrageous circumstances would very often lead to an award of aggravated damages separate from compensatory damages on the one hand or exemplary damages on the other. Here, however, the circumstances of outrage were “inherent in the claim”. Accordingly, damages in respect of this were assessed as part of the general damages and not as a separate heading of aggravated damages. He referred again to the passage at page 57 of the judgment of the learned President, which was the subject of extensive submissions from both sides.

Mr. Cush referred to two very contrasting cases. One was an English case of O’Brien where a person had been convicted of murder and imprisoned for twelve years, which period included virtually all of his twenties and his early thirties. An award of £200,000 sterling was made to him when this conviction transpired to have been wrongfully obtained. The case is very remarkable in that at one point the Crown contended that the award should be reduced to take account of the sustenance and accommodation provided to the claimant at public expense while he was imprisoned. I regard this award as inadequate by Irish standards.

In stark contrast to this was an Irish case of Bedford, unreported. There, Mr. Cush said a lady had recovered €100,000 for a wrongful arrest under s.30 of the Offences against the State Act within the past few years. She had not however been prosecuted and the detention extended to 48 hours only. To say this is not to belittle the wrong done to her or in any way to suggest that the damages were excessive.

At the conclusion of his submissions, Mr. Cush responded to questions on certain specific aspects of the case. He conceded that it was fair to say that Sheenagh McMahon’s statement alleging that her husband had confessed to her that he had perjured himself in the trial of Francis Shortt had been ignored. Equally, he said that it “seemed a likely inference” that the gardaí blocked temporary release for Mr. Shortt during his prison sentence. Mr. Cush also said that it seemed likely that the State, and not simply the gardaí, must have been involved in the offer made to Mr. Shortt while he was serving his sentence. It will be remembered that this was an offer of immediate transfer to an open prison, followed by early release, in consideration of his dropping his appeal. He said that neither on that subject, on the repeated denials of temporary release, nor on the absence of an apology until that day could he put the matter any further. He finally emphasised that Crofter Properties Ltd. v. Genport Ltd. [2005] 4 I.R. 28 “was an authority for the proposition that the award of compensatory damages had to be considered when assessing exemplary damages”.

Reply.
In reply, Mr. Hugh Mohan first dealt with a reference in the judgment of the learned President to evidence being “planted”. Mr. Mohan conceded that there was “no direct testamentary basis” for that finding. It appears from the judgment of the Court of Criminal Appeal that Garda McMahon had an agreement with a long standing garda informant to plant evidence but that the woman in question got drunk and did not turn up to do so. When McMahon was questioned by the Carty team about her involvement in the Point Inn episode, he said “She was never in the Point Inn, she was supposed to go there but she never went.” This, remarkably, was not pursued. Ms. McGlinchy said McMahon had told her he had got other, named, people to plant drugs for him.

Mr. Mohan said that the €500,000 award for general damages was, so disproportionate – “by a factor of far more than 25% – that it more than met the ‘no reasonable proportion’ test which Mr. Cush had set out”. He again emphasised that this sum approximately equated to the award in
de Rossa, and the State had accepted that this was a worse case than
de Rossa. He emphasised the role of the gardaí in frustrating temporary release and pointed to the uncontradicted evidence about what the prison governor told Mr. Shortt in this regard.

In relation to Mr. Cush’s final submissions based on the decision in
Genport Mr. Mohan said that the significance of that case was limited to the punitive element in an award of exemplary damages: the decision did not at all affect the assessment of such damages based on exemplary factors, which should proceed on the basis set out in the judgment of McCarthy J. in Conway.

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PART III
Findings on legal issues as to Damages.
Damages: General Principles.
It is appropriate to recall the general principles applicable to the assessment of damages in a case such as this one. This is essential background both to the consideration of the submissions made about the judgment of the learned President and, more generally, to the assessment of damages if the appeal against the learned President’s judgment is upheld.

This is a claim for compensation under a statutory provision. The statute is the Criminal Procedure Act, 1993, s.9 of which deals with “Compensation for miscarriage of justice”. Insofar as is relevant the Section provides;
“(9)(1) Where a person has been convicted of an offence and…

(a)(i) His conviction has been quashed by the Court
[of Criminal Appeal] on an application under
s.2… and

(ii) The Court… has certified that newly discovered fact shows that there has been a miscarriage of justice…

The Minister shall, subject to subsections (2) and (3), make compensation to the convicted person…
(2) A person to whom subsection (1) relates shall have the option of applying for compensation or of instituting an action for damages arising out of his conviction”.

In the present case, the plaintiff instituted an action for damages.
As appears from pages 2 and 3 of the judgment of the learned President, with the agreement of the parties he assessed “damages pursuant to s.9(2)of the Act in respect of the period commencing on the date on which the plaintiff was charged.”

Also by agreement, the learned President decided to “make a single award rather than to break the same down into a number of discrete heads of award in respect of the various headings of claim which could be maintained at Common Law”. The learned President pointed out that the plaintiff was making his claim pursuant to s.9 of the Act of 1993, and “further or in the alternative damages for breach of constitutional rights, conspiracy, negligence and breach of duty, malicious prosecution, false imprisonment, loss of reputation including but not confined to damages for libel and slander and damages for deliberate and conscious abuse of statutory power”. In this regard the learned President said:
“I do not propose making awards under any of those headings in respect of anything which occurred after the plaintiff was charged notwithstanding that the evidence would entitle a claim on all or any of such bases to succeed in the alternative to the claim under s.9. I will however have regard by analogy to the Common Law in relation to such claims insofar as the plaintiff claims damages and aggravated and/or exemplary damages in respect of his claim under s.29. I adopt this approach upon the basis that the parties are in agreement that I should do so.”
I would proceed on the same basis.

It would appear therefore that, by agreement, the plaintiff is entitled to damages under s.9, which include but are not limited to the various Common Law causes of action listed by the learned President. This is so in respect of all events happening after Mr. Shortt was charged: in respect of events predating that he is left to his Common Law rights.
As to the general principles of assessing damages, there was on the hearing of this appeal no dispute as to the authority of the decision of this Court in Conway v. Irish National Teachers Organisation [1991] 2 IR 305. There, Finlay C.J. had this to say at page 316ff:
“In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are in my view potentially relevant to any particular case. They are:

(1) Ordinary compensatory damages, being sums
calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.
(2) Aggravated damages being compensatory damages increased by reason of

(a) The manner in which the wrong was committed, involving such elements as oppressiveness, arrogance, or outrage, or

(b) The conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or

(c) The conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff up to and including the trial of the action.

Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part or recognition of the added hurt or insult to a plaintiff who has been wronged, and in part a recognition of the cavalier or outrageous conduct of the defendant.

(3) Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the Courts particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, and quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered. I have purposely used the above phrase ‘punitive or exemplary damages’ because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be regarded as constituting the same element”.
(Emphasis added)

In the same case, McCarthy J. in a passage beginning at p.526 said, referring to a case of established governmental or State wrongdoing:
“in such case, if in any case, it must be open to award exemplary damages. Where the wrongdoer is not a governmental or State agency the relevant consideration is amount rather than liability. The purpose of awarding such damages is truly to make an example of the wrongdoer so as to show others that such wrongdoing will not be tolerated and more to the point, will not be relieved on payment of merely compensatory damages. It does provide a windfall for the successful plaintiff; the application of the evidentiary rule to which I have referred may provide the most handsome windfall, that of freedom – to the person charged with a criminal offence.

The Constitution in guaranteeing rights imposes corresponding duties. In the instant case, the defendant’s in deliberately interfering with the plaintiff’s right have failed in their own duties. Every member of the judiciary has made a public declaration to uphold the Constitution; it would be a singular failure to do so if the Courts did not, in appropriate cases such as this, award such damages as to make an example of those who set at nought constitutional rights of others. As the Chief Justice has said, that is not to say that in every case, such as defamation or assault, where there is also by definition a breach of a constitutional right, there should be an award of exemplary damages. In my judgment there was here a compelling case for the award of such damages”.
(Emphasis added)

While other cases were cited in the course of the argument I am satisfied that Conway sets out the basic principles of our law on the fundamental classifications of damages, and that these are sufficient to deal with some of the fundamental matters in difference on the hearing of this appeal.

Aggravated and exemplary damages.
At p.57 of the judgment of the learned President, he had this to say about aggravated damages:
“It can be said that both aggravated and exemplary damages are awarded in respect of the external circumstances accompanying the cause of action. The former are measured on the basis of compensation. They represent additional compensation to a plaintiff where his sense of injury is heightened by the manner in which or the motive for which the act giving rise to the claim was committed. Such damages represent a recognition of the added hurt or insult to the plaintiff who has been wronged and a recognition of the cavalier or outrageous conduct of the defendant. They can extend to conduct subsequent to the conduct which gives rise to the claim. See Conway v. INTO [1991] 2 IR 305. Having regard to the evidence adduced on the application for a certificate pursuant to the Criminal Procedure Act, 1993, s.9(1) it is fair to say that the plaintiff was sacrificed in order to assist the career and ambitions of a number of members of the Garda Síochána. However the Court must be diligent to ensure that there is no element of double compensation. The award of damages by analogy to the Common Law in relation to those causes of action which the defendant’s conduct would constitute is intended to take account of injury to feelings, loss of dignity, humiliation, frustration, helplessness and despair including in the case of a claim under the 1993 Act despair at the failure of the criminal justice system. In these circumstances I do not think it appropriate to make an award under this heading”.

Turning to exemplary damages, the learned trial judge had this to say at p.58:
“As for exemplary damages I adopt from the Law Reform Commission report on aggravated exemplary and restitutionally damages a passage at paragraph 1.01:
‘The aim of exemplary damages is twofold: to punish the defendant and to deter both the defendant and others from engaging in conduct that is extremely malicious or socially harmful, in Lord Devlin’s own words to teach the wrongdoer that tort does not pay. An exemplary damages award may also be intended to vindicate the rights of the plaintiff or as Lord Devlin stated in Rookes v. Bernard to vindicate the strength of the law. It has the additionally incidental effect of providing compensation and satisfaction to the plaintiff. In the context of the Constitution the particular purpose of exemplary damages is to vindicate and defend individual constitutional rights, to punish the defendant’s disregard of them and to deter their breach’.

While an argument exists as to the rationality of awarding exemplary damages where liability is vicarious, the Supreme Court had no difficulty in making such an award in McIntyre v. Lewis & Ors. [1991] 1 IR 121 in respect of a claim for assault false imprisonment and malicious prosecution against gardaí and the State. The plaintiff was awarded compensatory damages of £5,000 and exemplary damages of £20,000. However the Court must be also conscious that it does not award double compensation here. In the circumstances of this case there was an outrageous abuse of power by the garda officers involved. Evidence was planted. Perjured evidence was relied upon. It had not been expected by them that the plaintiff would be sent to prison but when he was they took no step to remedy the situation. I propose to mark this conduct. I am satisfied that the circumstances of this case fully justify an award of substantial exemplary damages. However again I must be conscious of the risk of double compensation. I propose to award the plaintiff under this heading the sum £50,000”.

Plaintiff’s entitlement to aggravated and exemplary damages.
As has been seen earlier in this judgment the principle issues on damages raised on the hearing of this appeal relate to the refusal to make any award of aggravated damages, on the basis that it would constitute double compensation on the one hand, and the reduction in the quantum of exemplary damages for the same reason, in order to avoid double compensation.

As we have seen, on the hearing of the appeal the State conceded that the second finding, that in relation to exemplary damages, is wrong. Specifically, it was conceded that the President had not been correct to consider the risk of double compensation as a factor capable of reducing the award of exemplary damages, because such damages were not at all compensatory in nature.

In my view, this was a well advised concession on the part of the authorities. The purpose of exemplary damages, as stated by McCarthy J. in the extract from his judgment quoted above, is “… truly to make an example of the wrongdoer so as to show others that such wrong will not be tolerated and more to the point will not be relieved on the payment of merely compensatory damages. It does provide a windfall for the successful plaintiff…”.

It appears to me to follow from this analysis, which is quite consistent with that of Finlay C.J. in the same case, where the award of exemplary damages is stated to be “… quite apart from [the] obligation… to compensate the plaintiff for the damage which he has suffered”, that indeed exemplary damages as they are currently understood are in a category quite separate from compensatory or aggravated damages. As is pointed out in the judgments in Conway the term “exemplary” is sometimes used interchangeably with “punitive”. The learned judges in that case explained the reason for their preferring the former term. On the facts of the present case, I would share that preference. Even if this plaintiff were awarded a truly enormous sum under this heading, I doubt if it could be described in any real sense as “punitive”. The money would not come from the pocket of any individual or even from any individual company or other business entity. It would in the end be levied on the tax payer and neither the gardaí who committed the tort, or any individual member of the force, would be one cent the worse for the award. Such an award cannot truly be described as punitive. On the other hand it seems quite possible to make an award which will “make an example of” the wrongdoers here and the legal entities responsible for them by marking in terms that everyone can understand the sheer evil of what was done and the detestation which the Courts, speaking for civil society in general, must feel and express for it. I will return to these topics below: for present purposes it is sufficient to note that they are quite separate in principle and reality from compensation: they are “quite apart from” compensation to use the phrase of Chief Justice Finlay. Accordingly I believe that it was incorrect to consider, in reduction of exemplary damages, the risk of double compensation.

On the topic of aggravated damages, the position of the State is a more nuanced one. The relevant part of the extract from the learned trial judge’s judgment above appears to me to be:
“… The Court must be diligent to ensure that there is no element of double compensation. The award of damages by analogy to the common law in relation to those causes of action which the defendant’s conduct would constitute is intended to take account of injury to feelings, loss of dignity, humiliation, frustration, helplessness and despair including in the case of a claim under the 1993 Act despair at the failure of the criminal justice system. In these circumstances I do not think it appropriate to make an award under this heading”.

All of the factors just listed relate to feelings and perceptions of the plaintiff. It is quite true to say that such consequential injury to feelings, which may be extreme, are included in the things which an award of “ordinary compensatory damages” are to redress. In the extract from the judgment of Finlay C.J. in Conway, above, he refers under the heading of ordinary compensatory damages to “mental distress, anxiety, deprivation of convenience or other harmful effects…”.

Aggravated damages, on the other hand focus, not on the feelings of the plaintiff, but on the actions and demeanour of the defendant. This emerges clearly from a consideration of the indicative list of three criteria on the basis of any one of which aggravated damages may be awarded. This is contained in the judgment of Finlay C.J. at p.317. Whether the commission of the tort occurred in a manner involving “oppressiveness, arrogance or outrage”, whether the wrongdoers conduct after the tort “such as a refusal to apologise or ameliorate the harm done or the making of threats to repeat the wrong” exacerbate the wrong; whether the conduct of the wrongdoer “in the defence of the claim of the wronged plaintiff” will aggravate the damages – all feature on the conduct of the defendant, their servants or agents and not on the plaintiff. Aggravated damages are compensatory damages increased by the presence or absence of the factors mentioned by Finlay C.J. or others. It is, therefore, wrong in principle to say that an award of compensatory damages which takes account of the plaintiff’s emotional distress (here, an extremely important factor: the man was driven to despair) exhausts the capacity for an award of aggravated damages.

But that is not the end of the issue on aggravated damages because Mr. Cush contends, in the alternative, that all of the factors which might otherwise ground an award of aggravated damages were, in the particular circumstances of the present case, “inherent in the claim”. If this submission means that because Mr. Shortt’s claim was for damage caused by a conspiracy by gardaí, he is debarred from an award of aggravated damages because the wrongdoers’ status as gardaí was essential to enable them to act as they did, I cannot accept it. It is quite possible to be damnified by perjury on the part of a person who is not a member of An Garda Síochána or the holder of any official position. Equally, it is quite possible to be deprived of one’s liberty, perhaps for years, (by, for example, terrorists as in the case of Mr. Terry Waite), without any ostensible process of law. Even apart from the status of the immediate wrongdoers, there are in my view many features of “oppressiveness arrogance or outrage” about the conduct of the “paying parties” in the present case. A series of false charges were preferred against an innocent man in the cynical expectation that he would, and would be advised to, plead guilty to at least one of them as part of a “semi-deal”. As a result of his refusal to do this he was sent forward to a higher court without sufficient evidence and eventually received a three year sentence. This caused some drunken distress to one of the wrongdoers but he absolutely refused “to apologise or to ameliorate the harm done”, as did his superior. Moreover, it appears to me, the offer to get him early release if he withdrew his appeal, thereby acknowledging his guilt, clearly and necessarily implied that if he did not do so he would be left to rot in jail which is clearly in my view a “threat to repeat the wrong”, or at least to continue it. Furthermore, the conduct of the wrongdoers after Mr. Shortt’s release was equally scandalous: his attempt to obtain the redress of having his conviction declared a miscarriage of justice was met with deliberate cynical and continuous perjury during the long hearing in the Court of Criminal Appeal.

From the foregoing it will be clear that I accept the submission of Mr. Mohan S.C. that Mr. Shortt “ticked all the boxes” for an award of aggravated damages. It would be sufficient if he ticked one. Furthermore, it seems to me that many of the features just mentioned are separate and apart from the initial conspiracy, even though they would not have occurred but for that seminal event. It was not necessary to the conspiracy, for example, that the plaintiff be denied temporary release, that an attempt was made to get him to acknowledge his guilt as the price of early release, or that perjured evidence was deployed in answer to his claim for redress.

Not only this is a case where aggravated damages, in addition to ordinary compensatory damages are available; I believe it is case where it is imperatively necessary in justice that they be awarded.

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PART IV
Damages suffered by Francis Shortt.
(i) General damages.
The following appears to me to be a summary list of the post charge damage (other than special damage) sustained by Mr. Shortt.
He was exposed to massively damaging publicity. He was brought before the District Court. He was apparently invited to acknowledge his guilt on a single charge failing which he would be sent forward for trial. When he refused, the prosecution procured his return for trial even though there was admittedly no sufficient case against him on the statements then to hand. He was returned for trial to the Circuit Court and tried on some only of the charges against him. He realised he was on risk of a prison sentence. A month before the first trial date he was served with additional evidence which, for the first time, made the case against him look truly formidable. He was put through a criminal trial which lasted for some days with accompanying publicity. He heard gardaí giving what he knew to be perjured evidence. He was convicted and sentenced to three years imprisonment. He was forthwith put in handcuffs, chained to a prison officer, and removed amidst a blaze of publicity. He was held in Mountjoy Prison in conditions that were not merely unpleasant but frightening. He continued to be held there or in Castlerea Prison. He was not afforded temporary release. He was subjected to many indignities (strip search etc.) incidental to his status as a prisoner. While in prison he heard of the disintegration of his business, the taunting of his children and associated problems and the impoverishment of his wife who sought prisoners’ wives allowance. He saw other prisoners being granted temporary release. He lost his appeal to the Court of Criminal Appeal. He lost all hope and was reduced to a state of despair and, at times, clinical depression. He suffered “relentless” stress. He suffered the physical conditions described in the medical reports of which the most serious was stress related cardiac illness. He was released a tainted and ruined man, with his premises burnt by terrorists reacting to his conviction.
Over and above the foregoing, but related to some of his sufferings, he was stigmatised as a drug criminal who had been caught. He suffered total loss of reputation. The Court has seen correspondence which makes it clear that he was in grave danger of losing his status as a Fellow and member of the Institute of Chartered Accountants. Though he had not practised this profession for years, it was a status in which he took legitimate pride and was part of his self image. Poignantly, some of his prison letters have “F.C.A.” after his name. The Institute was compelled to institute disciplinary proceedings against him but acted with generous forebearance and adjourned them from time to time at his request and eventually discontinued them after his successful appeal. He was painfully aware that he had few or no friends and that his family were suffering for his supposed misdeeds. He was put in the position of having to choose between maintaining his innocence at the cost of serving his full sentence less only statutory remission or procuring his release by effectively admitting guilt. The threat of further charges was used to pressurise him.
In a word, Mr. Shortt was stigmatised, imprisoned, suffered the loss of his reputation, his business and his ability to provide for his family. In a very literal sense, he was deliberately and maliciously degraded.
I do not accept that Mr. Shortt’s reputation has been wholly vindicated by anything that has happened since. If it were desired wholly to vindicate him, it is impossible to understand why the gardaí specifically would not have apologised long since, acknowledged his innocence, and condemned those directly responsible for his misery and degradation. Undoubtedly his reputation must have been beneficially affected by the declaration of a miscarriage of justice. In some oblique way it is probable that the revelation of numerous misdeeds, some almost incredible to the average person, by Donegal based gardaí have made Mr. Shortt’s account of being framed more believable. But he remains, however unfairly, a man of damaged reputation in the eyes of many. I fully accept what was said in evidence by Mr. John Ward on this topic.
Aggravation.
(ii) The following features seem to me to be amongst those which aggravate the damage indicated above. The conspiracy against Mr. Shortt was committed by persons wearing the uniform of the State. The gardaí who were party to it took advantage of the reputation of the Force, earned by generations of dedicated and honest members, and hoped that this reputation would carry them through the difficulties created by improbable aspects of their evidence. This hope was borne out. They acted out of pure self interest: there is little evidence of initial personal malice and none of “noble cause” corruption. Not content with the conviction and sentence they acted to deprive Mr. Shortt of temporary release as long as they could. Someone in authority very cynically arranged that he be offered early release in return for an admission of guilt. When Mr. Shortt first moved to have his conviction set aside on the grounds of newly discovered facts this was agreed to even though at that time he could point only to general evidence of misdeeds by gardaí in the Donegal division. When he moved to have his conviction declared a miscarriage of justice it was opposed on the basis of perjured evidence. The State continued to oppose the declaration of a miscarriage even though anyone listening to the garda evidence would have become deeply suspicious, to say the least. A vital piece of evidence relating to McMahon’s admission of perjury was withheld not only from Mr. Shortt but from the State counsel. When it came to light it transpired that nothing had been done about it. The documents discussed earlier in this judgment which formed the bulk of the newly discovered material were not communicated to Mr. Shortt or his advisers when they came to the attention of the garda authorities. Instead, his lawyers were left to piece his case together, which they did with remarkable diligence, making full use of the provisions for disclosure and discovery.

Not least of the aggravating factors must be the cynical plausibility with which the garda account was advanced both in the courtroom and in the media. Noel McMahon adopted the demeanour of a plain blunt man doing his sincere best despite the fact that his command of language sometimes failed him and, as he often claimed, that his memory was not good for detail. Kevin Lennon, as Superintendent, made himself available to the media at various times. Mr. Shortt had the unpleasant experience of seeing him giving a new television interview with the Point Inn premises as backdrop while he was in prison. He came across as a media-savvy sophisticated and talented garda officer who appeared gravely concerned about the drug problem and determined to do something about it and who had organised an undoubted coup at the Point Inn but ingratiatingly shared the credit with “the lads” under his command. Yet each of these men was so unscrupulous that, apart from anything else, they seriously frightened each other. As explained above, this led to their eventual unmasking. But when they were in their full power and authority their behaviour to Mr. Shortt was cynical, brutal, calculated and oppressive. Moreover, deep concern was felt in the Garda Síochána in relation to McMahon, who had been rendered unstable by drink, but no-one felt able to do anything about him. He even continued to carry his official firearm, which he was clearly unfit to do, because none of his superiors had the gumption or the moral authority to take it from him.

It must also be borne in mind that all of these things happened to a man of 60 years of age and upwards without any previous convictions. His age and previous good character have a number of consequences. First of all, it must be obvious that the rigours and terrors of imprisonment will bear harder on a 60 year old of good character and no previous exposure to the criminal law and the penal system than on a 25 year old with a history of violence and many previous convictions. Secondly, when his conviction was eventually declared a miscarriage of justice he was about 70 years old and, on the undisputed evidence, was physically, mentally and emotionally an older man than his chronological age would suggest. He simply had less time and less resilience to rebuild his life. Not only has he lost years that will never come again but the years after his torment abated are, by reason of his age, and the consequences of the wrong done to him, simply less useful for any attempt to regain his previous position in life, in business, and in society.

One particular event, chronicled in the prison diary, emphasised to me the appalling position in which the applicant here was put. When the still somewhat mysterious offer of transfer to an open prison and early release was made to him, Mr. Shortt took advice as to his position from several sources. He had a consultation, in prison, with a solicitor of undoubted competence who instructed Senior Counsel rightly regarded as a leading expert in the Criminal Law. Having considered the case with all appropriate diligence, counsel felt compelled to advise that he could see no legal course of action with any reasonable prospect of success and that, in the interest of his family, Mr. Shortt should consider the offer seriously. It is plain that he did so, at great emotional cost over a considerable period. I have no doubt that this was an additional agony, not easy to overstate.

This aspect of the case also emphasises how unpromising the case must have seemed when it was eventually taken on by Mr. John P. Ward, Solicitor, and Counsel retained by him. It was plainly an enormously onerous case and the chances of its success must have appeared very poor. Having regard to Mr. Shortt’s reduced circumstances, the prospect of any payment were extremely remote. The fact that it was brought to a successful conclusion has quite properly earned plaudits: but in my view the fact that so utterly unpromising a case, clearly requiring an enormous investment of time, was taken on in the first place on behalf of a person whom the events of the case themselves had rendered both a pauper and a pariah, reflects well on the legal profession.

The absence of any apology until the last moment is, perhaps, the final aggravating factor to be considered.
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PART V.
Exemplary Damages.
Role and attitude of the Gardaí.
I firmly believe that, in the public interest, a very substantial sum must be awarded under this heading in order to “make an example of” the wrongdoers here. The enormous power conferred on the gardaí, partly by law and partly by the (often well deserved) trust of the public, make what happened in this case nothing less than an obscenity. These gardaí were out of control: the whole affair graphically illustrates Mr. Justice Morris’s conclusion that the gardaí are “losing their status as a disciplined force”. (Morris Report, paragraph 13.101). What gardaí did to Mr. Shortt was so outrageous as almost to defy description but the garda force has yet to admit this. The former Garda Representative Association representative in Donegal told the Morris Inquiry, speaking of internal disciplinary procedures:
“It is the nature of the gardaí, we don’t name the names – we don’t want to get anybody into trouble in the Garda Síochána internal matters… we try our best to make sure – we are not going to be hanging our people”. (Morris Report, 12.117)

The outrageousness of what was done, the very long period required to discover it, the failure of An Garda Síochána itself expressly to acknowledge, and apologise for, the misdeeds of its members and the grave risk to society as a whole if gardaí behave as some of those involved in this case behaved, render it absolutely necessary to make a substantial award of exemplary damages. If there were no such award I firmly believe that Courts would be making themselves part of the problem rather than part of the solution. What happened to Mr. Shortt boggles the mind and almost defeats the imagination. A very significant award is necessary in order to “make an example of” the wrongdoers in a serious way, in the public interest.
In U.S. v. Salerno 481 U.S. 697, Mr. Justice Thurgood Marshall said:
“Honouring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse. But at the end of the day the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty only injure those who are wrongfully accused and ultimately ourselves.”

It occurs to me that the principal shortcut to which we in this jurisdiction have sometimes been prone is that of according a very high degree of credence to garda evidence, simply because it comes from a garda source. This, in turn, is based on an instinct to trust material from this source because experience suggests it is usually reliable. Indeed, it is often hard to see what members of An Garda Síochána would have to gain by lying. Like most lawyers of my generation I have not infrequently heard trial judges, in cases where there was a conflict of evidence between gardaí and defence witnesses, inviting the jury to consider what the gardaí would have to gain by lying, thereby “putting their careers on the line”, or some such phrase.

If this case and others like it teach anything, it is that it does no favour to an institution like the gardaí to accord their members a special level of presumptive credence. On the contrary, this attitude offers a temptation to unscrupulous gardaí who may assume that, most of the time, the public, the media, judges and juries will accord credence to the garda account, even if it is in certain ways rather improbable. This case plainly demonstrates that some gardaí will lie, simply to benefit their own careers, and lie again, even on oath, to avoid the consequences of having told the first set of lies, and so on. It also reveals that the prospect of this being detected and acknowledged by the gardaí themselves is restricted by an attitude which dictates that “… we don’t name the names… we are not going to be hanging our people…”, in the words of a former G.R.A. representative in Donegal, cited above. Moreover, one must recall that a conspiracy of the sort featured in this case may develop into something much larger than originally intended. It is instructive to consider the attitude of the corrupt Detective Garda, McMahon: he fully expected the whole thing to end in the District Court, with a plea of guilty to one charge and a trivial penalty. He was astonished, even incredulous, that Mr. Shortt and his then solicitor would not play ball with this arrangement simply on the basis that he was not actually guilty. No doubt sincerely, in his own mind, he blamed Mr. Shortt’s original lawyers for all that happened afterwards. He cheerfully participated in the conspiracy to beef up the evidence, orchestrated by his superior, and cheerfully perjured himself in the Circuit Court. But he was horrified at the three year sentence whose injustice he seemed to have recognised though he spoke about it only when drunk. This led him only to slobber drunkenly about what he had done, to his wife and to Adrienne McGlinchy. In other words, Noel McMahon emerges as someone whose life experience has led him into a total disregard for truth, a ready willingness to perjure himself, and an expectation that others, even some amongst his superiors in An Garda Síochána, are just as unscrupulous as he.

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Legal aspects of quantification.
Certain aspects of exemplary damages have been considered earlier in this judgment, for the purpose of dealing with the submissions in relation to the judgment of the learned President. It is not proposed to repeat now what has already been said, but certain of the passages cited, notably from Conway, are clearly relevant in the assessment of the quantum of such damages.

In general, I accept what is said in the Law Reform Commission’s paper on aggravated, exemplary and restitutionary damages at paragraphs 101.02 and 1.03:
“Dicta of the Irish Courts referred to punishment and deterrence as equal and interlinked purposes of an exemplary damages award.”

In Conway v. I.N.T.O [1991] 2 IR 305, the Supreme Court found that the aim of exemplary damages was:
“… to punish the wrongdoer for his outrageous conduct, to deter him and others from any such conduct in the future, and to mark the Courts… detestation and disapproval of that conduct.” (At 509, per Griffin J.).

In Cooper v. O’Connell (unreported), Supreme Court, 5th June, 1997, Keane J. noted that “in developing the law of exemplary damages the Courts had been concerned with principles of public policy and with the need, in accordance with these principles, to make an example of the defendant”.

A similar dictum of McCarthy J. in Conway has already been cited. The Law Reform Commission also reflects these dicta, in my opinion, when it says at paragraph 1.06:
“It is also important to consider the role of exemplary damages in deterring highly reprehensible conduct, including violations of constitutional rights. In a case where there has been a serious breach of constitutional rights, which the Court considers warrants exemplary damages, there is a public interest in calculating an award that will effectively deter such a breach in the future.” (Emphasis added)

Despite the practise in certain United Kingdom cases, I consider it important that an award of exemplary damages should be recognised and specifically described as such, rather than merely forming an undifferentiated part of an award of general damages. To proceed in this way makes the exposition of the process whereby damages are arrived at more rational and transparent and also firmly identifies the exemplary aspect, and the precise matters in respect of which such damages are awarded. It has, as far as I know, always been the Irish practise to do this. I have already said that I prefer, at least in the context of a case such as this where the defendants are State Authorities, to regard the sort of damages now under discussion as exemplary rather than punitive, for the reasons given above. The State itself, or a State Authority, is simply not capable of registering personally the punitive aspects of such an award, as a private individual or company is. The classic modes of legal punishment are deprivation of liberty by imprisonment or of property by way of fine: these cannot meaningfully be imposed on a State authority. In the calculation of exemplary damages against a private entity, the means of the wrongdoer are to be taken into account: the reason for this is to graduate the penal element in accordance with the means of the offender. But no individual wrongdoer will lose anything by reason of the award in this case. It would be ludicrous, and plainly contrary to the public interest, to make an award against a public authority such as the Commissioner of An Garda Síochána so large as to reduce the capacity of An Garda Síochána to perform its statutory functions.

Accordingly, I am of the opinion that in a case such as the present where the defendants are public authorities, the principal consideration in calculating the amount of an award of exemplary damages must be the amount necessary “… truly to make an example of the wrongdoer so as to show others that such wrong will not be tolerated and more to the point will not be relieved on the payment of merely compensatory damages”.
But I wish to emphasise that, in an appropriate case, both the punitive and the exemplary heads of damage are available to a Court addressing a case on its individual facts.

Although it is important, for the reason set out above, that exemplary damages be awarded as a separate heading of damages and not included in an omnibus award, the same does not necessarily apply to aggravated damages. Exemplary damages are, and aggravated damages are not, in a category and in respect of an object, quite separate from compensatory damages. Aggravated damages, on the other hand, are compensatory damages increased by reason of the factors set out in the judgment of Finlay C.J. in Conway v. Irish National Teachers Organisation, much cited above. In that case, as it happens, the defendant was not a state authority but a trade union which, in pursuance of an industrial dispute, had interfered with the constitutional rights of certain school children. Mr. Cush cogently argued that the general damages had to be regarded as including what might be regarded as aggravated damages and also sought to avoid, or to minimise, any uplift in the compensatory damages on the basis that the paying parties liability was vicarious only. Certainly it is true that where a conscious and deliberate wrong is done by servants of the State, especially when a perversion of justice is brought about by those charged with enforcing the law, aggravated damages are very likely to arise. This seems to be inevitable by virtue of the matters which Finlay C.J. regarded as calling for an increase in compensatory damages: elements such as oppressiveness arrogance or outrage, and the conduct of the wrongdoer after the commission of the wrong and the conduct of the wrongdoer in legal proceedings. This case, unfortunately, features elements of that kind which do not entirely, and in some cases do not even substantially, overlap with the original wrong. These have been sufficiently outlined above. In the present case I consider, and I understand that my colleagues agree, that a single award should be made in respect of compensatory and aggravated damages. It will not always be appropriate to do this and in particular the case for making separate awards is stronger in a trial court (whether with or without a jury) so that if there is an appeal the elements of the total award can be precisely ascertained. But it is not intended to lay down any hard and fast rule in this regard.

Furthermore, although this case has many aspects which imperatively call for an award of exemplary damages it must be obvious that such damages will not automatically be called for simply because there is a finding that a particular conviction amounted to a miscarriage of justice. Here, the newly discovered facts, principally the preserved but concealed documents and the evidence of Sheenagh McMahon, clearly reflected on the conduct of the gardaí in the prosecution, both before and during the court hearing. But it is possible to hypothesise a case where, for example, a new scientific discovery or insight factually undermined forensic evidence important to the conviction, and which was advanced at the time of the trial in good faith. In such circumstances, if a new evidence were fairly dealt with by the prosecuting authorities, there might be no cases for an award of exemplary damages. The example taken, of new scientific evidence, is not intended to be exhaustive on the circumstances where no exemplary damages would be called for.

The purpose of “truly making an example” of the persons legally responsible is above all to deter any repetition of the sort of conduct which attracts those damages in the first place. In the circumstances of this case it is necessary to consider, as a part of this objective of deterrence, that Mr. Shortt’s vindication has been very long in coming in part because of a lack of urgency in the investigation of his case after conviction. This is illustrated, and not exhaustively, by the effective failure to investigate Mrs. McMahon’s perjury allegation, and by the effective loss for a long period of the physical record of that allegation. Moreover, there has been a consistent attempt by the State Authorities to deal with this case on the most minimal basis possible. Firstly it was apparently hoped that a promise of early release would induce Mr. Shortt to drop his appeal. If he were believed to be guilty, it is difficult to see why early release from a sentence of three years imprisonment would be thought appropriate. If it were appropriate to grant him early release it is impossible to see why a condition that he should drop his appeal against his conviction should be attached to such release. Secondly, the Director of Public Prosecutions (who had, remarkably, not then considered Mrs. McMahon’s allegation) agreed to the quashing of Mr. Shortt’s conviction, for no particular stated reason. The application to have Mr. Shortt’s conviction considered, not merely unsafe or unsatisfactory, but a miscarriage of justice, was contested tooth and nail by the Authorities, vital information withheld from State Counsel, and perjured evidence deployed.

It is not easy to find precedents to guide the Court in awarding damages, whether compensatory, aggravated or exemplary in a case like this. One must start with the State’s concession that Mr. Shortt’s case was the worse case of State oppression of an individual citizen of which the authorities were aware. One must bear in mind the case of Bedford, referred to above, where there was an award of £100,000.00 compensation for a wrongful arrest under s.30 of the Offences against the State Act, with forty-eight hours subsequent detention. One is painfully aware that the case most similar to the present, in that it featured imprisonment for a period of years following a wrongful conviction is that of Edward Noel Kelly and the persons charged with him, referred to above. But those cases were settled, so that there is no court decision on the appropriate level of damages. Moreover, the only information available as to the amount of the settlement is from unauthenticated newspaper accounts, which cannot influence the Court’s decision here. It is of course true that the State must be aware of the amount of those settlements, but it may be that it is precluded, by a confidentiality agreement, from revealing them.

The case of Mr. Proinsias de Rossa, referred to above, was one of an appalling defamation, printed and disseminated very widely. Drug dealing, or the enjoyment of the proceeds of drug dealing, was part of the utterly false allegation made in that case. But it was unaccompanied by imprisonment and ritual degradation of the victim such as happened in this case and it did not feature the abuse of State power, which was the mechanism of the destruction of Mr. Shortt. Moreover, Mr. de Rossa’s circumstances were such that he was enabled to recover from the attack on him in a much more effective way than Mr. Shortt has been able to do.

There is no Irish authority to suggest that the award of exemplary damages is limited to the amount of the award of compensatory damages or some lesser sum. In McIntyre v. Lewis [1991] IR 121, the plaintiff was assaulted by some gardaí in Birr, Co. Offaly. They then charged him with assault and released him on bail. He was sent forward for trial on a charge of assaulting a guard but was acquitted. He then sued the Gardaí and the State Authorities. A jury awarded £5,000 damages for assault and false imprisonment and £60,000 damages for malicious prosecution. The Supreme Court altered this award to £5,000 for compensatory damages and £20,000 exemplary or punitive damages in respect of malicious prosecution. O’Flaherty J., while concurring in this award, expressed the view that an award of exemplary damages “should properly be a fraction rather than multiple of the amount awarded by way of compensatory damages”. I wish to say that I cannot agree with this statement. It is inconsistent with the actual result in McIntyre v. Lewis. But, more importantly, it is contrary to what I am satisfied is the true principle of aggravated damages in an action against State Authorities: that it be sufficient “truly to make an example” of the wrongdoers and that it be effective to deter a repetition. I cannot agree that the sum awarded in the High Court in this case is even remotely sufficient in either regard. It must however be recalled that that award was made on the basis of acceptance of a submission which the State resiled from on this appeal.

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PART VI
Special Damages.
The assessment of special damages in this case is not an easy one. There was somewhat conflicting expert evidence from Mr. Desmond Peelo and Mr. Ray Jackson, Chartered Accountants, and from Messrs. John P. Younge and Messrs. Morrisseys, two firms of Auctioneers and Valuers each of which has acknowledged expertise in the valuation and sale of licensed premises. All the witnesses mentioned are highly skilled and highly reputed practitioners.

There is no doubt that Mr. Shortt has lost the stream of income from the Point Inn, and the Point Inn premises themselves, sold by a receiver appointed after his conviction. The premises had by then been burnt by the IRA and have now been restored by the purchaser to a good condition at a cost of about €750,000. Mr. Shortt is also, he claims, at a loss of the potential income from a caravan site adjacent to the Point Inn which he had planning permission to develop. Mr. Shortt’s experts were of the opinion that this scheme would have been profitable in itself and, just as significantly, would have considerably increased the sales in the adjoining pub.

There are a number of factors which make the calculation of special damages difficult. The premises themselves are unusual, being remote from other facilities or residences, though of course within an easy drive of the City of Derry. They are maritime but not quite beach front premises, a fact which is relevant because everyone agreed that there is a premium for beach front premises, especially caravan parks. It was not easy to find direct comparators for the values of the interest in the land due to these features: in particular, I am satisfied that the “sensational” price obtained for the beach front caravan park in Nairn, Portnoo, Co. Donegal, is not appropriate as a guide. Calculations of loss of income are also difficult because, as Mr. Peelo said:
“It is difficult to be definitive as to the estimates of income. The disarray and the affairs of the Point Inn in the mid 1990s was such as to result in the available financial information being unreliable as a basis for financial calculations”.

Equally, this aspect creates considerable uncertainty on the question of whether or not Mr. Shortt would have been in a financial position to fund the development of the caravan park as a venture in itself and as a source of valuable additional custom to the pub.

A further complicating factor is the limited nature of the trade carried on in the public house. Though the Shortt family had been in possession of these premises since about 1930, the nature of the trade had changed a good deal. To some extent it was perhaps in a state of flux: not long had elapsed since the refurbishment and reopening of the premises which occurred when Mr. Shortt came into sole possession of them following the death of his brother. However, the fact is that the premises had come to trade mainly as an entertainment venue rather than as a public house as that term is traditionally understood. The licensed premises traded only at the weekends and ran a discotheque one night a week. There was some evidence, referred to in the judgment of the learned trial judge, that this reflected the fact that 90% of the clientele came from Northern Ireland: having regard to the fact that Derry was the major centre of population near the premises this is probably true. It illustrates the limited nature of the trade which it was profitable to carry on and this, of course, has consequences for the assessment of the potential.

That, indeed, was another subject of major dispute. The State’s experts were inclined to value the premises by virtue of their capital value calculated principally on the basis of a multiple of turnover. Mr. Peelo and Mr. Younge were keen to build in a figure for potential, and the learned trial judge did this as best he could on the somewhat unsatisfactory evidence which was all that was available to him.

Having carefully considered the reports, the evidence and the judgment, I am not satisfied that it has been shown that the learned trial judge was in error in any of these respects including the deductions which he made. Accordingly, under this heading, I would uphold the findings of the learned trial judge. I would also uphold the fairly nominal assessment of €5,000 in respect of general damages at common law in respect of which there are certain difficulties of proof.
PART VII
Awards and Order
Based on the matters set out above at some length, and bearing in mind the concession that this case is the worst of its kind of which the State Authorities are aware, and considering the unchallenged evidence of Mr. Shortt and those who gave evidence on his behalf, I concur in the awards of damages under each of the relevant heads in the sums proposed by the learned Chief Justice.

Order.
For the reasons set out above I would order the payment by the defendants jointly and severally to the plaintiff of the total sum of four million six hundred and twenty-three thousand eight hundred and seventy-one euro. (€4,623,871.00).

DK v Crowley (No.2)

 

[2010] IESC 29

UDGMENT of Murray C.J. delivered on the 12th day of May 2010
This is an appeal brought by the second and third named appellants (hereafter the appellants) against an award of damages for the total sum of €214,000 to the applicant/respondent (hereafter the respondent) for loss and damage claimed to have been sustained as a result of the breach of certain constitutional and legal rights. A sum of €100,000 damages has been paid to the respondent as directed by the High Court with a stay on the balance pending the outcome of this appeal.

The respondent’s claim was heard and determined in the High Court as an assessment only the appellants having decided not to contest liability.

The Notice of Appeal lodged on behalf of the appellants is an appeal only on the issue of the quantum of the damages awarded, as is also acknowledged to be the case at paragraph 7. of the affidavit of Miss G. Hodge dated 12th September 2008 and filed on their behalf.

Application by Appellants to amend Notice of Appeal and for a retrial on liability

When this appeal was first listed for hearing as an appeal against assessment of damages only the Court indicated that it was difficult to identify the cause or causes of action in respect of which the State had admitted liability and the legal basis on which the State agreed that it was liable to pay damages to the appellant which they had agreed would be assessed by the Court. This raised questions concerning the jurisdiction or at least the basis in law on foot of which the Court could review the assessment of damages since any assessment of damages depended, inter alia, on identifying the causes of action involved and the causal connection between any wrong admitted to have been committed and the damages or compensation awarded. The Court invited the parties to consider this situation and to make submissions as to how the Court should proceed.

In response the State appellants, as part of their submissions in this regard, applied to this Court by way of a Notice of Motion pursuant to Order 58 Rule 6 of the Rules of the Superior Courts for an Order (i) amending the notice of appeal and (ii) remitting the proceedings to the High Court for a determination of the issue of the liability of the State to the respondent for damages. The additional grounds of appeal which the appellants seek to have included in an amended Notice of Appeal are the following:-

(a) That the learned High Court Judge ought not to have awarded damages to the respondent without first having determined the issue of whether the Courts have jurisdiction to award damages in respect of the passing by the Oireachtas of a law affecting personal rights that is subsequently found to be unconstitutional, and

(b) that the learned High Court Judge ought to have found as a matter of law that the appellants have no liability to the respondent in respect of any infringement of the constitutional rights of the respondent arising solely from the passing by the Oireachtas of legislation and/or implementation and application to the respondent in good faith and without malice of those provisions.

The appellants have also sought “an order remitting the within proceedings to the High Court for the determination of the issue of State liability for damages when rights are affected by acts done pursuant to the provision of an Act of the Oireachtas which is found to be unconstitutional.”
In a Grounding Affidavit supporting the foregoing application the solicitor for the appellants stated, inter alia,:-

“I say and am instructed that the State parties now acknowledge and accept that it is necessary that the issue of State liability for damages when rights are affected by acts done pursuant to the provision of an Act of the Oireachtas which was found to be unconstitutional should be decided before any issue of the quantum of such damages is addressed. I say and am instructed that it is acknowledged that this fundamental jurisdictional matter should be decided in the first instance, prior to any consideration of the issue of quantum of damages. … it is acknowledged and accepted that in circumstances where this fundamental jurisdiction issue was not raised or argued in the High Court, that the interests of justice require that the matter should first be tried and decided by the High Court before consideration by this honourable Court on appeal.” (paragraph 13).
The position adopted by the State, in its submissions to this Court, is that there was no authority of this Court or other basis in law to support the respondent’s entitlement for damages as a consequence of the Court’s earlier conclusion in these proceedings that certain provisions of the Domestic Violence Act 1996 were unconstitutional. It was submitted “No authority was put before the High Court or otherwise notified to the State to support Mr. Keating’s claim for damages. Indeed, any relevant authority is hostile to the case made by Mr. Keating in his damages claim.”
In substance the State now seeks to impugn the decision of the High Court at this stage in these proceedings on the grounds that there is no legal basis for attributing liability to the State for the payment of damages to the plaintiffs for the wrongs which he alleges to have sustained and that the matter should be remitted to the High Court to have the issue of State liability decided.

The respondent in the appeal contends that given the course of the proceedings, and the admission of liability in the High Court that the State is in effect estopped from raising the issue of liability at this stage. He also submitted that it would be an injustice to the plaintiff to permit the issue of liability to be opened at this stage and, insofar as the Court might have a discretion to permit the appellant to re-open the issue of liability at this stage, there are no compelling or exceptional circumstances which would warrant the exercise of that discretion in favour of the State.

The first issue which the Court has to consider, in the light of the appellants’ application, is whether the State should be permitted to amend and extend their appeal so as to impugn the decision of the High Court to award damages on the grounds that the State had no liability even though liability was admitted in the High Court.

If that application is refused, as I consider it should be, the next issue is whether, in the particular circumstances of the case, the appellants’ appeal discloses justiciable grounds of appeal, and only if so, whether they are well founded in whole or in part.

Issue concerning amendment and retrial on liability

The application of the appellants referred to above seeks an amendment of the Notice of Appeal in the form indicated and, in an express acknowledgment that the issue of liability which the appellants now wish to be tried should not in any event be tried in this Court as a court of final appeal but in the High Court as the court of first instance, seeks an order remitting that issue for trial by the High Court.

I think it would be useful to set out at this point the sequence of events concerning the claim for damages.
§ The respondent issued judicial review proceedings with a view to setting aside the interim barring order on the grounds that certain provisions of the Act of 1996 were unconstitutional and subsequently, claimed damages for loss and damage sustained as a result of the unconstitutional making and enforcement of that order against him. The claim for damages was included after the respondent had been permitted to amend the grounds and relief sought in the judicial review. That occurred before the hearing and determination of the constitutional issues;
§ By consent of the parties the issues concerning the constitutionality of the Act of 1996 was heard and determined by the High Court and all issues concerning damages including liability were left in abeyance pending the outcome of the constitutional challenge;
§ This Court allowed the respondent’s appeal against the finding of the High Court in favour of the constitutionality of the Act of 1996 on the grounds that its provisions failed to ensure that an interim barring order, granted ex parte, would expire within a short period of time so that its continuance in force thereafter could only be ordered after a hearing of each party on the merits;
§ The Court remitted the matter to the High Court for the determination of the issues concerning damages, “if any”, to be awarded to the respondent;
§ The respondent served on the appellant, the State, detailed points of claim on the issue of damages;
§ The State served detailed points of defence on the respondent denying liability and damages;
§ The trial of issues concerning damages before the High Court at which, from the outset, the State abandoned its defence on liability and agreed that the matter should proceed as one of assessment of damages only;
§ The appellants appealed to this Court on the issue of the quantum of damages only.

Subsequent to all the foregoing the appellants brought their application to resurrect the issue of the State’s liability in this case and seek a retrial on that basis.

As concerns the application to amend the grounds of appeal so as to pursue a defence of no liability it should first of all be pointed out that this is not an application to introduce new grounds of appeal concerning the determination of the High Court on an issue which has already been challenged on other grounds in the appeal already filed.

Nor is it even an attempt to challenge on appeal an issue which was contested in the High Court. It is an attempt to set up a case of liability de novo for the purpose of resisting the plaintiff’s claim in a retrial on grounds which had been conceded at the commencement of the trial in the High Court.

Neither is the application itself grounded on any error of law or fact alleged to have been committed by the trial Judge or any injustice in the conduct of the hearing. The application is made solely because, on further reflection after the Notice of Appeal was lodged, the appellants have concluded that they ought to have maintained the issue of State liability, rather than abandoned it, at the trial. The State has now adopted the view that it is in a strong position to argue that it has no liability in law to the respondent.

In the light of the foregoing the appellants’ application, as indeed they acknowledge in their submissions, falls well outside the ordinary discretion which the Court is normally called upon to exercise if a party seeks to amend a Notice of Appeal.

When the matter came for trial before the High Court all issues, both liability and quantum, were due to be tried by the Court on their merits. By consent the appellants submitted to a determination of the issue of liability in favour of the respondent and in effect invited him to present his case on the basis that he had to tender evidence only for the purposes of an assessment of the amount of damages to be awarded to him.

Absent fraud, or some fundamental issue of justice arising from the conduct of the proceedings, it is difficult to contemplate circumstances in which a party would be permitted, in an appeal or otherwise, to impugn a determination by the High Court of an issue, such as liability, which had been expressly conceded by the party concerned. Of course it is not contended that there was anything in the nature of fraud or fundamental injustice and, in any event, the setting aside of a determination by the High Court on such grounds would require the bringing of separate proceedings before the High Court. (See P. v. P. [2001] IESC76 and In re Greendale Developments (In Liquidation) (No. 3) [2000] 2 I.R. 514).

The appellants acknowledge, as they are bound to do, that the issue of liability could have and (from their perspective) should have, been pursued in the High Court and that it was only on further reflection, after they had lodged their appeal on quantum only to this Court, that they concluded that they should seek to have a trial of the issue of liability.

In short it was intended that the judgment of the High Court, on the basis of the appellants’ admission, would be final and conclusive as regards liability.

Arguments of the Appellant

The appellants submit that it is of fundamental importance to the State as to whether the State may be liable for damages when an individual’s rights are adversely affected by acts done pursuant to the provisions of an Act of the Oireachtas which enjoys the presumption of constitutionality but which is subsequently found to be unconstitutional. While it is accepted in those submissions that as a general principle the Supreme Court will refuse to allow a party to raise an issue on appeal that was not argued before the High Court, it is submitted nonetheless that there are exceptions to this principle even if those exceptions are very limited.

For the foregoing proposition the appellants relied on the judgment of Finlay C.J., in KED v. MC [1985] I.R. 697, 701 where he stated:

“It is a fundamental principle, arising from the exclusively appellate jurisdiction of this Court that in cases such as this that, save in the most exceptional circumstances, the Court should not hear and determine an issue which has not been tried and decided in the High Court. To that fundamental rule or principle there may be exceptions, but they must be clearly required in the interests of justice.” (emphasis added). The appellants submitted that the exceptional circumstances in this case which would entitle them to succeed in their application include the following:

” The fact that the issues affect the doctrine of separation of powers inherent in the Constitution;
The fact that the issues go to the jurisdiction of the Courts to award any damages at all in this case;

The legal significance and novelty of the issues involved;

The likely importance of the issues in future cases;

The absence of any serious prejudice to the respondent.”

In their written submissions the appellants stated that it was fully accepted that the State “should bear responsibility for any costs incurred by the respondent arising from the State’s failure to raise the liability issue in the High Court in the first instance.” This it was submitted removed the only real prejudice that the respondent could suffer if the matter was remitted to the High Court for a re-trial on the issue of liability.
I would first observe that the facts and circumstances of KED v. MC were quite different to the situation in the present case. In that case the appellants (where the Court refused to hear the issue) sought to raise for the first time in the Supreme Court a mixed question of law and fact which had not been raised or decided in the High Court. In the present proceedings the liability of the State was expressly put in issue and decided on the basis of an express admission of liability by the State. On foot of that admission the High Court determined that the State was liable to the appellant and awarded damages accordingly.

It would not be really correct to treat this case as one in which the issue of liability was simply not tried and decided. It was not tried as an issue because the State took the position that there was no argument which could be made against its liability to the plaintiff and that the issue should be determined on that basis. In that sense the issue was decided.

The terms of the High Court order included the following:

“There being no denial of liability in the points of defence herein except as to damages
the Court doth reserve judgment herein

and the same coming on accordingly for judgment on this day

the Court doth find that the respondent was negligent

the Court doth assess damages under the following headings.”

The order then went on to recite the damages awarded under the various headings. These are referred to in detail later in this judgment. The reference to a finding of negligence against the appellants is obviously intended as a reference to the Court’s determination on the issue of liability for the wrongs alleged by the respondent.
There may indeed be, as Finlay C.J., stated, “most exceptional circumstances” where the Court would hear and determine an issue which has not been “tried and decided” in the High Court if that is clearly required in the interests of justice. The liability of the State, having been in contention between the parties until it was conceded, was an integral part of the decision of the High Court. In any event, even if the principle stated by Finlay C.J., were to be applied in this case I do not think that the appellants have in any sense established that the re-opening and retrial of these proceedings are required in the interests of justice.

Undoubtedly the principles of law of general importance arise as regards any State liability to individuals where the application of an Act of the Oireachtas has caused them adverse consequences and that law is at some later date found to be unconstitutional.

However these proceedings are the respondent’s proceedings in which he sought and obtained an award of damages against the State. The problem which has arisen in this appeal is that the principles of law according to which liability was conceded and thus found in favour of the respondent were never stated nor are they readily discernible. The State now wishes to say that there is no basis in law at all for such an award. To determine the principles of law to be applied would involve a substantial hearing and extensive legal argument.

In those circumstances and since the High Court did not have to address any legal principles, because it was not required to do so, on foot of which the liability of the State might arise it is not a precedent in law for other cases on the issues which the State refer to in their submissions and which I have cited above. The decision in this case only binds the parties to these proceedings. These are issues which it is open to the State to litigate in other proceedings according as they might arise. The State chose not to do so in this particular case and in my view it would be wholly unjust to a plaintiff who had proceeded against a defendant in his claim for damages for an assessment only, the defendant having so agreed. If a defendant were to be permitted to change his or her mind after the High Court decision (and indeed after it had lodged its Notice of Appeal) and seek to have a retrial of the whole matter which, depending on the precise determination on the question of liability, could also involve a retrial on the question of damages.

One cannot lose sight of the fact that the respondent exercised his constitutional right of access to the Courts to have certain issues, including his claim for damages determined in accordance with law. The State had every option to defend the claim on all issues. He succeeded in his action and the damages were assessed on the basis of a general admission of liability on the part of the State for the wrongs alleged. Having completed that judicial process before the High Court it is somewhat cavalier, to say the least, for the State to argue that his legal costs to date are the only prejudice which he would suffer if the judgment of the High Court was set aside and the matter remitted for trial de novo on the issue of liability. To accede to the State’s application would be to deny the respondents the rights and benefits of a judgment of the High Court, even if subject to an appeal in question.

The situation in which the State finds itself is entirely of its own making and in my view it would be unconscionable to set aside the order of the High Court on the question of liability because the State wishes to raise that issue at this stage when it could have done so in the court of trial. The respondent would lose the benefit of the order of the High Court on this issue which is not impugned by the appellants on any ground of error or defect in the judicial process.

Apart from the principle that “the finality of proceedings at the level of trial and possibly more particularly at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law,” (Hamilton C.J., In re Greendale Developments Limited (In Liquidation) (No. 3) 200 2 I.R. 514) to deny the respondent the benefits of determination of the issue of liability by the High Court on the grounds advanced by the appellants would be a denial of justice.

As mentioned above it was clearly the intention of, and accepted by, both parties that when the trial on the assessment of damages took place in the High Court that the decision would finally determine the issue of liability between the parties in this case.

In that light the issue of liability between these parties can probably be regarded as being governed by the principle of res judicata. On that ground the appellants would be estopped per res judicatum from raising again the issue of liability in this appeal. The result would be no different if one were to adopt the view expressed obiter in Bradshaw v. M’Mullan [1920] I.R. 424, that estoppel arising from a judgment by consent was more properly characterised as an estoppel by conduct as noted in Civil Procedure in the Superior Courts, Delaney and McGrath, Sweet and Maxwell, 2001 (at p. 651).

In any event I am satisfied that to grant the application of the appellants to amend the Notice of Appeal with the view to re-opening the issue of liability would be to permit an abuse of the process of the Courts. In the judgment delivered in this Court in In The Matter of Vantive Holdings & Ors., (The Supreme Court, Unreported 14th October, 2009) express reference was made to the inherent jurisdiction of this Court “to protect the integrity of the due process of the administration of justice and the finality, in principle, of a judicial decision.”

In that case it was noted that the petitioner “had an opportunity to present to the Court all the evidence at its disposal which was material to having the application decided in its favour… it deliberately chose not to do so … . On that basis it permitted the application to be heard and determined by the High Court and on appeal by this Court.”

The attempt by the petitioner in that case to bring a second petition on foot of material evidence which was deliberately withheld in the course of the proceedings concerning an earlier petition was held to constitute an abuse of the process of the Court. It was observed in that judgment that “to permit the petition to proceed, unless there are exceptional excusing circumstances, would undermine the integrity of the proper and efficient administration of justice and the principle of finality.”

In this case the appellants deliberately refrained from pursuing the issue of liability but now wish to re-open the case and raise that issue in a second hearing before the High Court.

In this case there are of course no excusing circumstances, and apart from or in addition to, the question of the appellants being estopped from raising the issue of liability, I am in any event satisfied that it would constitute an abuse of the process of the Courts to permit them to do so.

Accordingly the application to amend the Notice of Appeal and have the matter remitted to the High Court on the issue of liability should be refused.

The Appeal

I now come to the issue as to how the appeal brought by the appellants on the issue of damages should be determined. Before addressing that issue I think it is appropriate in this context to set out certain details concerning the course of these proceedings, the earlier decision of this Court on the question of constitutionality, the nature of the damages claimed and the damages awarded.

Relevant dates concerning District Court proceedings

6th November 1998: (a) District Court made an interim order pursuant to s. 4 of the Act of 1996 barring the respondent from the family home until 3rd February 1999 without leave of the Court.

(b) Summons issued by the District Court requiring the respondent to attend at the District Court at 2 p.m. on 3rd February 1999 to answer the application of his wife for a barring order in respect of the family home.
8th November 1998: date on which the respondent became aware of the making of the barring order and initiated an application to the District Court seeking an order terminating the barring order.
15th November 1998: respondent arrested, detained and subsequently charged with a breach of the barring order when he refused to leave his wife’s home at the request of the Garda Siochana.

16/17 November 1998: respondent released from custody on bail relating to the offence of breaching the interim barring order.

23rd November 1998: return date for application made by the respondent to have the interim barring order discharged pursuant to s. 13 of the Act of 1996. (application not proceeded with).

3rd February 1999: order of High Court granting leave to apply for judicial review and date on which interim barring order was due to expire.

The Supreme Court Finding of Unconstitutionality

It is important to note that the primary ground on which the respondent attacked the constitutionality of the relevant provisions of the Domestic Violence Act 1996 was the jurisdiction granted to the District Court to grant to a spouse in an ex parte application, an interim order barring the other spouse from the family home and thus without giving that other spouse an opportunity to be heard at that stage. This, the respondent claimed, was a denial of a right to a fair hearing and in breach of his constitutional rights.

In its judgment on the constitutional issue this Court rejected that claim but held that the relevant provisions were unconstitutional because of the failure of the Act to ensure that an interim barring order made ex parte would only remain in force for a short period of time after which its continuance could only be determined by a full hearing on the merits with both parties being heard.

The Court referred to subsection 4 of s. 4 of the Act of 1996 which had the effect that the interim barring order continued in force until “the determination by the Court of the application for a barring order”. As a consequence of the latter provision there was no statutory time limit on the effect of an interim barring order granted ex parte pursuant to s. 3 and such an order could continue in force until such time as the original applicant saw fit to seek a long term or permanent barring order or the person the subject of the barring order made an application for its discharge. In the latter case the onus would be on the applicant, the spouse who had been barred.

In this particular case the District Court, when it issued the interim barring order did specify a date for the hearing of the barring order application as such and the summons required the respondent to attend the District Court on 3rd February 1999 almost three months after the making of the interim barring order.

Again on the facts of this case the respondent himself had indeed initiated, on 8th November 1998, an application to the District Court seeking an order terminating the interim barring order and the return date for that application was the 23rd November 1998. However in such an application the onus was on the respondent to establish why the interim order should be discharged.

In this context the Court stated:

“Seen in that context the failure of the legislation to impose any time limit on the operation of an interim barring order, even when granted ex parte in the absence of the respondent, other than the provision that it is to expire when the application for an interim barring order is itself determined, is inexplicable. While in the present case, the District Judge fixed the hearing of the application for a barring order for a date three months into the future, the Court notes that the statute nowhere imposes on the District Court any obligation, when granting an interim barring order, to limit its duration in time. If no date is fixed for the hearing of the application for the barring order itself, as distinct from the interim barring order, it would be a matter for the applicant for the interim barring order to bring the matter before the District Court again. Manifestly, he or she will have little incentive to do so while the interim order remains in force.
It is undoubtedly the case that the respondent may apply to the Court at any time to have the interim order discharged or varied. No reason has been advanced, however, presumably because there is none, as to why the legislature should have imposed on respondents in this particular form of litigation, with all its draconian consequences, the obligation to take the initiative in issuing proceedings in order to obtain the discharge of an order granted in his or her absence, which it may be, should never have been granted in the first place. [It has not been demonstrated that the remedy of an interim order granted on an ex parte basis would be in some sense seriously weakened if the interim order thus obtained were to be of a limited duration only, thus requiring the applicant, at the earliest practical opportunity, to satisfy the Court in the presence of the opposing party that the order was properly granted and should now be continued in force.

The Court fully appreciates the considerations which the Executive and the Legislature would have had in mind in providing for the granting of interim barring orders on an ex parte basis. In the many cases where the spouses are still living together and one is being subjected to violence by the other which may also extend to the children, it may simply not be practicable for the application to be made on notice to the respondent. It is not the existence of a jurisdiction to grant interim barring orders on an ex parte basis which creates a serious constitutional difficulty, it is the manner in which the legislation has provided for the granting of such orders.”] (emphasis added).

The Court went on to draw an analogy with s. 17 of the Child Care Act 1991 where an order made by the District Court, on the application of the Health Authority with regard to the care of a child without notice to a parent could not remain in force for a period exceeding eight days.
In its judgment the Court concluded as follows:

“The Court is, accordingly, satisfied that the procedures prescribed by subsection (1), (3) and (4) of the 1996 Act, in failing to prescribe a fixed period of relatively short duration during which an interim barring order made ex parte is to continue in force deprive the respondents to such applications of the protection of the principle of audi alteram partem in a manner and to an extent which is disproportionate, unreasonable and unnecessary. The appeal will accordingly be allowed, the order of the High Court set aside and an order substituted therefore granting a declaration that subsection (3) of s. 4 of the 1996 Act is invalid having regard to the provisions of the Constitution and an order of certiorari quashing the interim barring order of the District Court.”
As will be seen from the above the constitutional frailty in the Act, as found by this Court, was confined to the failure of the Act to ensure that an ex parte interim barring order would only remain in force for a short period of time such as eight days. It was as a consequence of this frailty, and not because the District Court jurisdiction, which it still has to grant interim barring orders or an ex parte application albeit that the Act is found unconstitutional and the District Court order itself set aside.
The Claim for Damages

Subsequent to the decision of this Court on the constitutional issues the respondent, on 9th April 2003 lodged a document entitled “Points of claim for damages”. These were lengthy and often repetitive but essentially consisted of the following claims:

1. Damages, including aggravated and exemplary damages, for false imprisonment. This related to his arrest on 15th November 1998 for his breach of the interim barring order made by the District Court which was then still extant but subsequently quashed for the reasons explained. The wrongful imprisonment was said to result from the making of the interim barring order in a manner which was contrary to constitutionally guaranteed fair procedures because the respondent was not given an opportunity to defend himself in the ex parte proceedings and/or because it continued in force under the terms of the said Act for an unreasonable period of time which had been held to be unconstitutional.

2. Damages for failing to provide the respondent with his constitutional right to rebut the allegations made by his spouse on the making of the ex parte interim barring order or within a reasonable period thereafter as a result of which he was forced under the sanction of the criminal law to vacate/leave his family home, damaging his parental relationship with his children and his prospect of obtaining custody of his children.

3. Damages for “severe anxiety, mental distress and trauma, loss and deprivation of convenience, financial and economic loss through the consequential loss of his employment and/or loss of his family rights and enjoyment of same” arising from the above.

4. Damages for failure of the defendants to protect and vindicate the respondent’s constitutional rights and in particular to guarantee and protect the family in its constitution and authority by requiring the plaintiff, on foot of the District Court order, to leave the family home.

5. Damages because the respondent’s “good name and character was undermined causing him opprobrium in the eyes of right thinking members of society and in the eyes of his family, relatives, friends, acquaintances including his work mates …”

6. Damages for failing to guarantee or protect the family in its constitution as required by the Constitution due to the failure of the State to provide by law for the immediate accommodation needs of the respondent and his family or financial means so that the respondent could afford suitable alternative accommodation and not be prejudiced when seeking custody of his children and so as to prevent any further damage to his relationship as a parent with his children following the making of the barring order.

7. Damages for failing to respect or protect the respondent and his inalienable constitutional right and duty as a parent to provide for the physical and social education of his children.

8. Damages for unjust attack on his good name “with a consequence of granting of the … barring order … [he] suffered grave and irreparable damage to his good name and character in the minds/eyes of right thinking members of society/public more particularly in respect of his family by whom he was ostracized and further ostracized from the local community where he had lived up to 6th November 1998, from his relatives and friends, including his work mates/colleagues and became the subject of public and private opprobrium and comment …” It was claimed that the aforesaid damage to his good name and character was further aggravated as a result of his arrest for an alleged breach of the barring order and his subsequent charge and detention.

9. Damages for failing to protect and vindicate the respondent’s constitutional property rights by barring him from his home. Damages because “the respondents [that is to say the Judge of the District Court, Ireland and the Attorney General] and each or any of them … issued an interim barring order, invalid having regard to the provisions of Bunreacht na hEireann which order by its inherent nature wronged the plaintiff/applicant and caused profound personal injury and substantial and continuing loss and damage to him and the plaintiff/applicant claims damages.” (phrase in parenthesis inserted).

All the points of claim for damages were responded to in “Points of defence on behalf of the second and third named respondent” in which liability in respect of all or any of the claims for damages was denied. Thus both liability and quantum were put in issue in the points of defence at this stage but liability was subsequently conceded by the State at the trial.

The Damages Awarded

The damages awarded to the respondent were made by the learned High Court Judge under the following headings:

(i) Loss of convenience of housing from 6th November

1998 to October 2002 €12,000
(ii) General inconvenience and effect on the respondent due
to absence of adequate housing €45,000
(iii) Unlawful arrest, custody and false imprisonment €20,000
(iv) General damages for loss of an amenity to work as
a handyman €12,000
(v) Loss of constitutional right to enjoy children and marital
privacy:

Past: €40,000

Future: €10,000
(vi) Loss of reputation and good name €50,000
(vii) Emotional and psychological suffering €25,000
_______
Total: €214,000
Decision
The appellants have a right of appeal to this Court but if they are to succeed they must in the first instance establish that they appeal on grounds which have a justiciable legal basis which would permit this Court, inter alia, to review whether the High Court was correct in law making the assessment of damages which the appellant seek to impugn.

As can be seen from the points of claim the respondent sought damages for the global consequences, one might say, in his personal life alleged to flow from the interim barring order made by the District Court and his arrest by the Gardaí for an alleged breach of that order. At no stage has the case been made that there was any malice or lack of bona fides on the part of the appellants. The evidential case made in the High Court by the respondent for damages for these global consequences which he claimed to flow from these two events were grounded on the admission of liability by the State for the wrongs alleged. There is one point concerning the State’s admission of liability which may require clarification and I will refer to it later. At this point, while I do not think it is necessary for the purpose of the issue under consideration to review extensively the factual circumstances of the case and in particular all the evidence given by or on behalf of the respondent at the trial some general observations on the scope of the damages awarded may be useful.

The interim order was made on the ex parte application of the respondent’s wife alleging abuse, including physical abuse, often associated with excessive drinking, on his part over a period of 1½ years prior to the application to the District Court. The respondent has substantially denied the allegations (and there has been no decision resolving that conflict of fact) but that was the basis on which the District Court order was made. It is now common case that the respondent and his wife were never reconciled and they are unlikely to do so at any stage.

As regards the first two items of damage referred to above, namely those related to housing, the High Court, having noted that the house in which he lived with his wife was a Corporation house in which the respondent was a joint tenant concluded that it would have been unreasonable for him to surrender his joint tenancy for the purpose of seeking other accommodation from the Corporation prior to the Supreme Court decision of 9th October 2002 and awarded him €12,000 “in terms of the loss of rent, loss of convenience of housing up to the 9th October 2002”. As regards the second sum for housing the learned High Court Judge stated “In terms of allowing a reasonably liberal figure of years for getting on to the housing list going by the bed and breakfast/hostel route I consider that it is a much more challenging and serious downturn of the plaintiff’s situation and very intrusive of his rights and his culture and his personal self esteem and pride and also challenging to his health. On that basis, even though it might be notional in the outturn of events, I consider that if he were brave enough to face into that, a modest figure to compensate him for that would be €15,000 a year and that by 3 years into the future amounts to €45,000.”

The next head of damage was that awarded for arrest, custody and false imprisonment. This claim for false imprisonment was not advanced on the basis of the classical common law tort. Here it was acknowledged that at the time of the arrest the Gardaí had the statutory power to do so for breach of a then extant District Court Order made under provisions which were subsequently found to have been unconstitutional.

As regards the “loss of an amenity to work” the learned trial Judge found that the respondent had not established a claim for loss of earnings as such but as a person who, as a result of the proceedings in the District Court, had, as he found, come to be regarded as somewhat of a pariah and he was not asked to do the kind of handyman jobs which neighbours and others in the community used to ask him to do. Allowing for a “fade factor” the learned trial Judge awarded him the sum referred to above namely €12,000 not as a loss of income but as a loss of amenity of life.

As regards the loss of the constitutional right to enjoy children and marital privacy the learned trial Judge stated at page 27 of his decision: “In terms of the poor access, access into the house; the publicly perceived rift between himself and the children and that is a past element, which is mainly in the past, but will also persist into the future until things settle down, but it is mainly in the past and accordingly I award €50,000 in respect of that item, €40,000 for the past and €10,000 for the future totalling €50,000.”

As regards the plaintiff’s loss of good name the learned trial Judge noted that “This arises on a constitutional basis, it cannot be defined nor is it pleaded as a matter of defamation because the ingredients of the defamation seem to be lacking here”. On the basis that his relationship with his brothers and with other people suffered and that people avoided and shunned him arising from the District Court proceedings, including the making of the barring order, the learned trial Judge determined that he should be compensated in the sum of €50,000.

In making the award for emotional and psychological suffering the learned trial Judge discounted evidence that the respondent’s alcoholism, suicidal thoughts and apparent attempts by him to end his own life were as a result of the barring order but that the plaintiff was a “poor subject for the onslaught of the unconstitutional order” and some of these difficulties may have been made worse. Accordingly he awarded the sum of €25,000.

It might also be noted that for the purpose of assessing damages the learned High Court Judge had inter alia, ruled that certain mitigating steps that were alleged to be open to the respondent, such as the expedition of divorce proceedings which had been commenced or taking advantage of the hearing fixed for 3rd February 1999 could not properly be considered a failure to mitigate on the part of the respondent because the wrongful acts of the appellants had placed him in difficulties and in a disadvantageous situation in that regard.

It seems to me patent that a crucial element in the assessment of damages in the particular circumstances of the claim in this case is the legal basis for the liability of the State for the purpose of determining the extent to which the State can be held vicariously liable for the order made by the District Court under a law (which was then extant) and a bona fide arrest by the Gardaí under the authority of a law which was then extant for breach of the District Court order. The legal parameters of the cause of action would also be crucial in determining such issues as a causal connection between the wrong complained of and the damages sustained or remoteness of damage.

Such difficulties have now been fully acknowledged by the appellants who of course now say that the learned trial Judge could not have decided the issue of damages without determining the legal basis for the liability of the appellants something for which, for the reasons outlined earlier in this judgment, he can hardly be faulted in the light of the attitude of the State.

Assuming, as one must for present purposes, that the course of events in the respondent’s personal life were attributable to some wrong on the part of the State, and not stemming from any inherent or inevitable difficulty arising from a de facto breakdown in the respondent’s marital relationship, they are nonetheless alleged to be attributable to:

(a) An order made by a judge of the District Court under a law then extant but subsequently set aside not because its jurisdiction to grant an ex parte interim barring order was unconstitutional as such but because the relevant provisions of the Act failed to limit the continuation of such an order to a short period; and

(b) his arrest by the Gardaí, acting bona fide under the law as it then stood, for a breach of that order.

Before addressing these issues further there is one aspect concerning the State’s admission of liability which I wish to clarify.

At one stage it was suggested that the State had admitted liability only for such consequences as occurred between 8th November 1998 and 3rd February 1999. That is to say from a reasonably short period after the making of the interim barring order and the date when the interim barring order was due to expire as specified in the order of the District Court. That incidentally was also the date on which liberty to bring judicial review proceedings was sought and the proceedings before the District Court were stayed by order of the High Court.

There is no doubt but that the respondent’s proceedings proceeded before the High Court on an admission of liability and he was permitted to give and call evidence as to the global consequences of which he complained effectively without objection. In the course of submissions to the trial Judge on issues concerning damages counsel for the State at one point suggested that damages be limited to the dates referred to above but went on to confine his submissions to saying that no damages should be awarded to the respondent for loss arising from lack of accommodation or being out of work after 3rd February 1999 since that was the date when the interim barring order expired and any damage or loss sustained by the respondent after that date could not be said to have been caused by the making of the interim barring order. It was open to the respondent, it was submitted, to go into that court on that date and have a hearing on the merits. This was not so much a denial of liability of the wrong caused to the respondent but an argument addressed to the causal connection between the wrong admitted and the damage claimed to have been sustained or to put it alternatively, the remoteness of damage. This in fact was the approach of counsel for the State on that issue in the High Court and in the course of his submissions he indicated to the learned trial Judge that he should examine what the State did wrong then what flowed from that wrong since there must be cause and effect as he put it.

I do not propose to analyse the learned trial Judge’s ruling or approach to this question except to say that he found that the wrongs admitted to have been committed by the State, that is to say the making of an interim barring order and his arrest for breaching the barring order of the District Court, had put him in a position that he was so disadvantaged from defending his position in the District Court that the State could not rely on that opportunity to appear in court as a ground for limiting the damages to which he was entitled.

This, I would add is an example of the difficulty that this Court would face in endeavouring to review that decision by the High Court since the legal criteria on foot of which the State admitted it was liable were never identified either by the State in admitting liability or the High Court Judge when awarding damages (since he had no need to do so). Even if this Court found some fatal flaw on the face of the reasoning of the learned trial Judge on this point the Court would still find it difficult if not impossible to assess what the damages should be without reference to some legal criteria or the identification of a known wrong on foot of which liability was admitted. (Remitting the matter to the High Court would only be meaningful if the liability issue was re-opened and for reasons stated above this cannot be done).

The Merits of the Appeal

It is important to recall, though previously noted, that the appellants in their submissions have accepted that there was a fundamental deficiency in the legal basis for their appeal on the issues concerning the assessment of damages. In their submissions the appellants acknowledged:-

“I say and am instructed that the State parties now acknowledge and accept that it is necessary that the issue of State liability for damages when rights are affected by acts done pursuant to the provision of an Act of the Oireachtas which was found to be unconstitutional should be decided before any issue of the quantum of such damages is addressed. I say and am instructed that it is acknowledged that this fundamental jurisdictional matter should be decided in the first instance, prior to any consideration of the issue of quantum of damages. … it is acknowledged and accepted that in circumstances where this fundamental jurisdiction issue was not raised or argued in the High Court, that the interests of justice require that the matter should first be tried and decided by the High Court before consideration by this honourable Court on appeal.” (paragraph 13).
Moreover at the hearing counsel for the State conceded that if the Court were to proceed with the hearing as an assessment of damages that would be unsatisfactory because the basis for the award would not have been identified.
I think the approach fairly expressed at this stage by the appellants above is correct as regards the issues in the appeal on the quantum although the matter cannot now be remitted to the High Court for the reasons already stated.

It is undoubtedly the case that in certain circumstances the State is liable to pay compensation to individuals for breach of their constitutional rights. This may be particularly so when the State at the time the damage was caused, were acting unlawfully or with malafides or in misfeasance of public office.

It is an altogether different matter to determine the liability of the State, including its vicarious liability, for acts bona fide done by a Judge exercising his jurisdiction under a law which at the time enjoyed the presumption of constitutionality or other bona fide exercising statutory powers which also enjoyed such a presumption.

In the ordinary course of events a trial for damages only proceeds on the basis of an admission of liability for a known tort or other wrong known to the law and sufficiently identified in the pleadings. This permits a court to assess damage by reference to the established legal parameters of the wrong in question. Thus identifying the tort or cause of action is of fundamental importance enabling as it does issues concerning vicarious liability and remoteness of damage to be resolved by reference to an established body of law or discernible principle. Where a new point of law arises or indeed where a plaintiff asserts a novel right to damages such issues can be argued and determined in the court of trial. If resolved in whole or in part in favour of a plaintiff and damages assessed then, on appeal, this Court is in a position to review the decision of the High Court, including the assessment as to damages, having regard to the legal basis on foot of which the High Court awarded damages.

As has been seen the wrongs alleged by the respondent against the State have been framed under the general rubric of breach of constitutional rights. Generally speaking it can be said that such rights are vindicated through the establishment of well established remedies and causes of action known to the law. Certainly it may be the case that established causes of action may not provide an adequate remedy so as to properly vindicate the breach of the constitutional right. In such circumstances the Courts have jurisdiction to provide a remedy, even if in another form, in order to ensure that a right is vindicated where other necessary criteria for establishing legal liability are established.

Certain dicta of Barrington J., in McDonnell v. Ireland [1998] 1 IR 134 seemed to me particularly relevant in this context. That was a case in which the Court as a whole had great difficulty, to say the least, in identifying what, if any, cause of action the plaintiff had in claiming damages for the adverse effects of a statute subsequently found unconstitutional. Because the parties had agreed liability and damages the Court was able to deal with a net contingent issue, namely, whether the statute of limitations applied which it held it did, whatever “the amplitude” of the cause of action. Unlike this case identifying the amplitude of the cause of action was not necessary for the purpose of deciding the point at issue. In that case Barrington J., in his own judgment agreeing with the result made reference to the remedies available for breach of constitutional rights and observed:

“No doubt also there have been cases where the common law provided no adequate remedy for a breach of constitutional rights and where the Courts had been prepared to fashion a remedy on the principle of ubi jus ibi remedium.”
Barrington J., went on to cite Walsh J. in Byrne v. Ireland [1972] I.R. 241 and in Meskell v. Coras Iompair Eireann [1973] I.R. 121 at 132 in support of that view and I do not think it is necessary to cite those particular extracts but as Barrington J., went on to observe
“… in the passages quoted, Walsh J., was dealing with special or exceptional cases where the general body of the law provides no appropriate remedy.
He later went on to state:
“The general problem of resolving how constitutional rights are to be balanced against each other and reconciled with the exigencies of the common good is, in the first instance, a matter for the legislature. It is only when the legislature has failed in its constitutional duty to defend or vindicate a particular constitutional right pursuant to the provisions of Article 40.3 of the Constitution that this Court, as the court of last resort, will feel obliged to fashion its own remedy. If, however, a practical method of defending or vindicating the right already exists, at common law by statute, there will be no need for this Court to interfere.”
…

“There is no doubt that constitutional rights do not need recognition by the legislature or by common law to be effective. If necessary the Courts will define them and fashion a remedy for their breach.”

“But, at the same time, constitutional rights should not be regarded as wild cards which can be played at any time to defeat all existing rules. If the general law provides an adequate cause of action to vindicate a constitutional right it appears to me that the injured party cannot ask the court to devise a new and different cause of action. Thus the Constitution guarantees citizen’s the right to his or her good name but the cause of action to defend his or her good name is the action of defamation. The injured party, it appears to me, has to accept the action for defamation with all its incidents including the time limit within which the action must be commenced. Likewise the victim of careless driving has the action of negligence by means of which to vindicate his rights.” (emphasis added).

As a matter of general principle I think what Barrington J., stated is correct. For example the respondent in this case has done, as regards his claim for general loss of reputation and good name, exactly what he deprecated. Nonetheless the State admitted liability for damages for loss of reputation and for reasons set out earlier in this judgment are not now entitled to repudiate that admission of liability so as to recommence the proceedings on that issue. On the other hand this Court is hardly in a position to review the award of damages for damage to the respondent’s good name arising from the matters which he complains of unless the legal criteria according to which damages should have been awarded or can be assessed are discernible. In so saying I do not purport to give a definitive ruling on whether the respondent could have a cause of action in this respect since this is not the issue before the Court. If an issue as to whether there was a right to damages for breach of a person’s constitutional right to a good name existed independently of any remedy afforded by an action in defamation then the legal basis on which any such issue was resolved in the court of first instance would be open to review in the ordinary way including any damages awarded. A court of appeal is not in a position to treat an assessment of damages in the abstract without reference to the legal parameters of the cause of action as an issue which is justiciable on appeal. This consideration also applies to the other claims for which the respondent was awarded damages.
In the light of the foregoing considerations and the manner in which the State admitted liability it is simply impossible for this Court to embark on a consideration of heads of damage or their quantification. To attempt to do so would require the Court to endeavour to make a range of speculative assumptions as to the scope of the liability of the State, and indeed the very principle of such liability, for the adverse effects on individuals generally of a statute declared to be unconstitutional. To endeavour to address issues concerning the review and quantification of damages when the High Court has not identified any legal basis for liability in this case due to the general concession made by the State, would be, at best a dubious exercise in the abstract.

For these reasons I do not consider that the State has demonstrated any valid basis on which it can seek to impugn the decision of the High Court and I would dismiss the appeal.

Blehein v Minister for Health and Children

[2010] IEHC 329

Judgment of Ms. Justice Mary Laffoy delivered on the 24th day of August, 2010

1. The proceedings, the procedural history and the issue before the court
1.1 The primary relief claimed by the plaintiff in these proceedings, which were initiated by plenary summons which issued on 11th July, 2002, was a declaration that s. 260 of the Mental Treatment Act 1945 (the Act of 1945), as amended, was invalid, having regard to the provisions of the Constitution. The proceedings came on for hearing in this court before Carroll J. in October 2004. Judgment was delivered on 7th December, 2004. The judgment is reported at [2004] 3 IR 610. The Court found that s. 260 was unconstitutional, having regard to Article 6 and Article 34 of the Constitution. That finding was reflected in the order of the Court, as perfected, which also ordered that the plaintiff recover costs against the defendant. The defendants accept that no further order was made in the High Court in the proceedings and no further appropriate remedy was considered by the High Court, it having been agreed between the parties that all matters, other than the issue of the alleged invalidity of s. 260, should be left over.

1.2 The defendants appealed the decision of the High Court to the Supreme Court. The judgment of the Supreme Court was delivered on 10th July, 2008 by Denham J. It is reported at [2009] 1 IR 275. The appeal was dismissed and the order of the High Court was affirmed. However, Denham J. clarified the effect of the decision of the Supreme Court (at p. 281) as follows:

“The High Court found that the whole of s. 260 was invalid. In essence, this was a finding as to the specified grounds of s. 260(1). The decision as to s. 260(2) and s. 260(3) was entirely consequential to the findings as to the specified grounds in s. 260(1) and not an inherent finding on s. 260(2) or s. 260(3). It is on this construction that the order is affirmed, there being no specific infirmity at issue in s. 260(2) or s. 260(3), but rather, the foundations of s. 260(1) which is found to be infirm.”
The order of the Supreme Court, as perfected, dismissed the appeal and affirmed the order of the High Court. It also ordered that the plaintiff recover his costs against the defendants.
1.3 In the judgment of the Supreme Court, Denham J. pointed out (at p. 278) that the Act of 1945 had been repealed by the Mental Health Act 2001 (the Act of 2001). Section 73 of the Act of 2001, the text of which is set out at the end of the report (at p. 282), replaced s. 260. As Denham J. pointed out, s. 73 came into force on 1st November, 2006. However, she commented as follows:

“Thus the issue in this appeal is historic, as it relates to s. 260 of the Act of 1945 which has been repealed. However, it is relevant to the plaintiff, who has a claim for damages outstanding.”
While the issue of the plaintiff’s entitlement to damages if the impugned provision was constitutionally invalid was not before the Supreme Court, this Court must take cognisance of that comment.
1.4 Following the decision of the Supreme Court, the plaintiff brought a motion before this Court seeking to have the proceedings re-entered in this Court for the purposes of hearing his outstanding claims therein. By order made on 17th November, 2008, with the consent of the defendants, the proceedings were re-entered and were subsequently listed for hearing on 27th March, 2009.

1.5 When the matter came on for hearing on 27th March, 2009, the plaintiff appeared in person. When he was opening his case, counsel for the defendants intervened and stated that there was a fundamental issue in the case as to what relief or remedy, if any, flows from the decision of the Supreme Court, indicating that it would be the defendants’ submission that the Court has no jurisdiction to award damages on the basis of the decision of the Supreme Court that the procedural limitation contained in s. 260(1) was unconstitutional. Counsel for the defendants submitted that the issue as to whether the Court has jurisdiction to entertain the claim for damages should be determined first. In fact, the defendants had furnished comprehensive written submissions to the plaintiff on the previous day. In the written submissions, the issue, which it was submitted should be determined by the Court before the matter should proceed further, was formulated as follows:

What relief or remedy (if any), as a matter of law, flows from the decision of the Supreme Court, i.e. whether or not, and to what extent, the declaration as to the invalidity of s. 260(1) gives rise to any further remedy and, if so, the nature of such remedy.
The answer which counsel for the defendants suggested was the correct answer at the end of their comprehensive written submissions was that there is no basis in law for an award of damages following the declaration of the invalidity of s. 260.
1.6 Given that the plaintiff had not had an opportunity to consider the defendants’ contention that he did not have an entitlement to damages, with the consent of the defendants, the matter was adjourned to enable the plaintiff to consider the position. However, the Court raised with counsel for the defendants the appropriateness of arguing such a fundamental point of constitutional law in proceedings in which the proponent was a lay litigant. Arising out of those comments, the defendants suggested to the plaintiff that he should apply for legal aid and that he should revert to the defendants if there were any problems in that regard. However, when the matter was next before the Court, the plaintiff made it clear that he did not want legal representation and that he would represent himself.

1.7 The matter came on for hearing again on 26th June, 2009, when the plaintiff again appeared in person. Initially, the plaintiff contended that the defendants, in applying to have the issue heard as a preliminary issue were out of order, his contention being that the defendants should have pleaded the point as a matter of defence and then should have invoked order 25 of the Rules of the Superior Courts to have a preliminary issue tried. Notwithstanding that, after certain interaction between the parties and the Court, the plaintiff agreed to the issue raised by the defendants being determined by the Court first. Following that, counsel for the defendants, whom it was agreed would make his submissions first, made his submissions on the issue and the plaintiff followed with his submissions. However, as a result of that process, it became clear that the issue was being argued on the basis of legal submissions which were not being given a factual matrix. The absence of an agreed or an established factual basis has blighted the various steps taken in these proceedings and in other proceedings instituted by the plaintiff arising out of the same incidents as have given rise to these proceedings. In the judgment of the Supreme Court, Denham J. stated (at p. 280):

“Unfortunately, because of the history of serial proceedings by the plaintiff, this constitutional issue has been separated from findings of fact. Determinations of constitutionality of legislation are best made on a bed of fact. However, special circumstances have given rise to these proceedings, as referred to earlier in the judgment.”
1.8 In any event, in consequence of the Court’s intervention, the matter was again adjourned to give the parties an opportunity to see whether they could put before the Court an agreed statement of facts relevant to the issues in these proceedings.
1.9 The parties did not agree a statement of facts. The plaintiff submitted a statement of facts dated 6th July, 2009 to the Chief State Solicitor, who prepared a statement dated 27th August, 2009, which set out the facts which the defendants were prepared to agree “for the purpose of preliminary issues of law” in these proceedings. The matter was listed for further argument on 30th October, 2009. While the plaintiff agreed the facts as set out in the defendants’ statement of facts, his position was that the Court should rule on the preliminary issue on the basis of a more expansive statement of facts presented by him. The Court ruled that the facts, as set out in the defendants’ statement, were the only facts which were necessary as a foundation for the Court dealing with the preliminary issue. On that basis, the matter was adjourned for further argument until 17th December, 2009.

1.10 On 17th December, 2009, final submissions were heard from the parties on the issue.

1.11 For completeness I record that, prior to the initiation of these proceedings on 11th July, 2002, the plaintiff had, in 1995, initiated separate proceedings against the defendants in these proceedings [1995 No. 8934P], in which the primary relief sought was a declaration that s. 185 and s. 186 of the Act of 1945 were invalid having regard to the provisions of the Constitution and in which the plaintiff also sought damages for personal injury. The history of those proceedings is set out in a judgment delivered on 16th March, 2009, under Neutral Citation [2009] IEHC 182 on an application by the plaintiff to re-enter those proceedings on foot of a notice of motion of 21st July, 2005, the proceedings having been struck out on 18th March, 1999, when there was no appearance by the plaintiff when a list of uncertified cases was called over by the Court. The application to re-enter was refused and that decision is subject to an appeal to the Supreme Court [2009 No. 154]. In my judgment of 16th March, 2009, I found that the plaintiff had not been precluded by s. 260 from prosecuting the 1995 proceedings.

2. The pleadings
2.1 In his statement of claim, the plaintiff alleged that the defendants had failed, by law, to protect from unjust attack, as best they might, his personal rights, including, inter alia, his right to access to justice. In particularising his allegation, he alleged that the defendants were in breach of Article 40 of the Constitution. In the prayer for relief in the statement of claim, he sought declarations that the defendants had failed, by law, to respect his personal rights guaranteed to him by the Constitution, including his right of access to justice, in breach of Article 40.3 of the Constitution. The plaintiff’s claim for damages was formulated as damages “for infringement of constitutional rights, for personal injury, loss and damage”. In his statement of claim he has alleged that he was involuntarily treated with neuroleptic/psychotropic drugs contrary to his express wishes and has set out what he alleges were the adverse effects of the drugs on him.

2.2 The main thrust of the defence delivered by the defendants was to uphold the validity of section 260, which was dealt with in the first round of the proceedings. However, the defendants denied that they had acted in breach of the plaintiff’s constitutional rights. They also denied that he sustained the personal injury, loss or damage he alleged and, in the alternative, they pleaded that his claim for damages for personal injury, loss or damage was statute-barred.
3. Statement of facts
3.1 The defendants’ statement of facts is prefaced with the statement that “the defendants are strangers to the allegations made by the plaintiff in relation to the incidents and occurrences” and, as I have already indicated, they agreed the facts set out “for the purpose of preliminary issues of law”. The facts and events summarised in the statement fall under two broad headings.

3.2 The first relates to the factual foundation of the plaintiff’s complaints in all of the process initiated by him and sets out the three occasions on which the plaintiff was “escorted” by the Gardaí to St. John of God Hospital in Dublin, and detained there. The periods of detention were from 25th February, 1984, to 16th May, 1984, from 29th January, 1987 to 16th April, 1987, and from 17th January, 1991 to 7th February, 1991. While I understand why the defendants’ legal advisors have been cautious in the terminology which they have used in the statement, the whole basis of the variety of claims which the plaintiff has made in the proceedings since 1995, is that his admissions to, and detention in, St. John of God Hospital were involuntary. The statement also records that, during two of his periods in St. John of God Hospital, the plaintiff was treated with drugs and medications. The plaintiff’s case is that he was improperly treated, in consequence of which he suffered personal injuries. As regards the first heading, therefore, what is relevant is that the plaintiff has had three “escorted” transportations and admissions to, and periods of detention in, St. John of God Hospital, which I assume the Court is entitled to infer, as he contends, were involuntary.

3.3 In between the facts and events which I have classified under two headings there is recorded the fact that on 5th December, 1994 the plaintiff complained to the local Garda Superintendent about the incidents recorded above and about his treatment.

3.4 The events set out under the second heading are the various applications which the plaintiff made to the High Court to seek redress in relation to his transportation and admission to, and his periods of detention, in St. John of God Hospital, and his treatment while there, which were unsuccessful. The applications may be summarised as follows:

(a) An application made on 4th November, 1996, for leave to apply for certiorari by way of application for judicial review, which application was refused by the High Court. An appeal against the refusal was dismissed by the Supreme Court.
(b) Plenary proceedings between the plaintiff and St. John of God Hospital [1997 No. 8982 P] (the 1997 proceedings), which proceedings were struck out in the High Court (Kelly J.) on 3rd November, 1997, by reason of the fact that leave pursuant to s. 260 had not been obtained by the plaintiff. The decision of the High Court was upheld by the Supreme Court on appeal [1997 No. 353].

(c) An application made on 2nd (8th?) July, 1999 under s. 260 for leave to issue proceedings against six named defendants [1998 No. 24 IA] (the 1998 proceedings), two medical practitioners, the plaintiff’s wife and three members of An Garda Síochána, which application was refused in the High Court (Geoghegan J.) The refusal was upheld on appeal to the Supreme Court [Appeal No. 153 of 1999]. The decision of the Supreme Court is reported as Blehein v. Murphy (No. 2) [2000] 3 I.R. 359. The decision of the Supreme Court on an application, which was refused, to amend the notice of appeal to include a new ground of appeal challenging the validity of s. 260 is reported as Blehein v. Murphy [2000] 2 IR 231.

(d) An application made on 6th July, 2000 under s. 260 for leave to issue proceedings against St. John of God Hospital [Record No. 1999 No. 73 IA] (the 1999 proceedings), which was refused by the High Court (O’Sullivan J.). The refusal was upheld in the Supreme Court on 31st May, 2002. As is pointed out in the decision of the Supreme Court in this case by Denham J. (at p. 277), McGuinness J., in her judgment in that case, had refused a late application to amend pleadings to include a constitutional challenge to s. 260 but stated that, if the plaintiff wished to challenge the constitutionality of the legislation, the correct course would be to commence new proceedings by plenary summons. These are the new proceedings.

3.5 Apart from the events which I have summarised above, the decision of the High Court of 7th December, 2004 declaring s. 260 to be invalid, and the decision of the Supreme Court of 10th July, 2008 affirming the decision of the High Court, are also relied on as facts in support of the issue now before the Court.
3.6 Apart from the involuntary nature of the plaintiff’s detention in St. John of God Hospital, which I assume the Court is entitled to infer, the statement of facts does not address the factual complaints which formed the basis of the 1997 proceedings, the 1998 proceedings and the 1999 proceedings, which the plaintiff was unable to prosecute because of the existence of s. 260(1), and on which he grounds his claim for damages in these proceedings. Therefore, to a large extent, the Court is required to determine the issue on a theoretical basis.

4. Basis of decision of Supreme Court on s. 260
4.1 Sub-section (1) of s. 260, as amended, provided as follows:

“No civil proceedings shall be instituted in respect of an act purporting to have been done in pursuance of this Act save by leave of the High Court and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the person against whom the proceedings are to be brought acted in bad faith or without reasonable care.”
As Denham J. pointed out (at p. 279), the words of that sub-section limit access to the court by requiring a person, when seeking access by way of an application thereunder, to make a case of “bad faith or without reasonable care”, even if neither bad faith nor lack of reasonable care is part of the intended litigation.
4.2 In delivering the judgment of the Supreme Court, Denham J. considered the objective of the Act of 1945 (as stated in the long title, to provide for the prevention and treatment of mental disorders and the care of persons suffering therefrom) and the purpose of s. 260. On the latter point, she stated (at p. 280):

“The purpose of s. 260 was to give a limited protection to persons acting under the Act. This is a legitimate purpose for such legislation. But the section is a restriction of a constitutional right (access to the courts), in the context where the fundamental constitutional right of liberty has itself been restricted. Thus, it is a matter of seeking a reasonable and proportionate process.”
4.3 Having stated that the fact that access to the Court is restricted is not of itself unconstitutional, and having given examples of situations in which the Supreme Court so found, one example being the requirement in legislation to show “substantial grounds” to support seeking the relief sought, Denham J. continued (at p. 281):
“[17] The limitation of access to the court in this case, was not just one of ‘substantial grounds’, it was to situations where the High Court was satisfied that there were substantial grounds for contending that the person against whom the proceedings were to be brought acted in bad faith or without reasonable care. It was a restriction on the administration of justice where several features of the section are important. It placed a burden on the plaintiff, it related to two specified grounds only, it limited access to the courts, it curtailed the discretion of the court in a situation where a balance of constitutional rights is required to be protected.
[18] At issue in the case is the liberty of the plaintiff, an important constitutional right. While the aim of the Act of 1945 was legitimate, the limitation on the right of the plaintiff should not be overbroad, should be proportionate, and should be necessary to secure the legitimate aim.”

4.4 Having quoted the oft cited passage from the judgment of Costello P. in Heaney v. Ireland [1994] 3 I.R. 593 at p. 367 setting out the proportionality test, Denham J. continued (at p. 281):
“In this case the objective of the Act of 1945, as set out above, is legitimate. It is important. But it is not of sufficient importance to override the constitutional right of liberty and the constitutional right of access to the courts, in terms of the section, for the reasons given by the High Court. The terms of the section do not pass a proportionality test, for while being rationally connected to the objective, it is arbitrary (in referring to only two possible grounds of application) and hence unfair. It therefore does not impair the rights involved as little as possible, and so the effect on rights is not proportionate to the object to be achieved.”
4.5 I have already referred to the following factors to which counsel for the defendants attached significance:
(i) the clarification contained in the judgment of Denham J. as to the effect of the decision of the Supreme Court, which limited the declaration of invalidity to subs. (1) only of s. 260 (para. 1.2 above); and
(ii) the fact that Denham J. pointed out that by the time the appeal in this matter was heard and determined in the Supreme Court s. 260 had been replaced by s. 73 of the Act of 2001 (para. 1.3 above).

Subs-section (1) of s. 73 differs from subs. (1) of s. 260 in that it provides that leave “shall not be refused” unless the High Court is satisfied:
(a) that the proceedings are frivolous or vexatious, or
(b) that there are no reasonable grounds for contending that the person against whom the proceedings are brought acted in bad faith or without reasonable care.

Sub-sections (2) and (3) of s. 73 re-enact the provisions of sub-sections (2) and (3) of s. 260 verbatim. Sub-section (2) requires the application for leave to be on notice. Sub-section (3) provides that, if leave is granted, the Court shall not determine the proceedings in favour of the plaintiff unless it is satisfied that the defendant “acted in bad faith or without reasonable care”. Counsel for the defendants submitted that it is open to the plaintiff to avail of s. 73, but made the point that, in order to obtain relief in any substantive proceedings the prosecution of which is permitted under subs. (1) of s. 73, the burden is on the plaintiff to satisfy the Court (presumably in accordance with the usual standard of proof in civil cases – on the balance of probabilities) that the defendant “acted in bad faith or without reasonable care”.

5. Submissions
5.1 The Court has had the benefit of comprehensive written submissions both from counsel for the defendants and from the plaintiff, which were supplemented by oral submissions. The main thrust of the defendants’ submissions was to outline the authorities in which the issue has been considered by the Superior Courts previously.

What I propose to do first is to address the authorities which I consider have a bearing on the issue.

5.2 The authorities in which the issue whether redress over and above a declaration of invalidity of a statute for repugnancy to the Constitution should be available to a successful plaintiff will be considered first in chronological order. These are:

(a) Murphy v. Attorney General [1982] I.R. 241;
(b) An Blascaod Mór Teo v. Commissioners of Public Works (No. 4) [2000] 3 IR 565; and

(c) Redmond v. Minister for the Environment (No. 2) [2006] 3 IR 1.

It is also necessary to note the circumstances in which that issue did not fall for analytical consideration either in the High Court ([2005] IEHC 375) or the Supreme Court ([2010] IESC 29) following the decision of the Supreme Court in D.K. v. Crowley [2002] 2 I.R. 74. Finally, as the defendants placed considerable emphasis on the judgment of the Supreme Court in McDonnell v. Ireland [1998] 1 I.R. 134 on the question of the entitlement to damages for breach of a constitutional right where the plaintiff was relying on a previous successful challenge to a statutory provision by another litigant, it will be considered.
5.3 To the extent to which I have not already done so, I will then outline the submissions made which focus on the issue by reference to the declaration of invalidity as to s. 260. However, it is convenient to outline at this juncture some of the basic premises which underlie the position adopted by the defendants. First, it is contended that there was no deliberate attempt by the legislature to violate the plaintiff’s constitutional rights. That cannot be gainsaid. Secondly, it is contended that the law in issue was not addressed to, and did not involve any act or omission, against an individual citizen. That is true, but it was a law which the Supreme Court struck down on the basis that it infringed the constitutional rights of an individual citizen, the plaintiff.

6. Murphy v. Attorney General
6.1 In this case the Supreme Court held that the imposition, in certain circumstances, of tax on a married couple at a higher rate than would be imposed on two single persons enjoying identical incomes constituted a breach by the State of its undertaking in Article 41.3 of the Constitution to guard with special care the institution of marriage and to protect it against attack, but did not infringe the guarantee of equality before the law contained in Article 40.1 because the unequal treatment of the plaintiffs was justified by the difference of social function between a married couple living together and two single people living together. It held, accordingly, that the impugned provisions of the Income Tax Act 1967, by providing for the aggregation of the earned incomes of married couples and thus normally imposing on them tax at such higher rate, were repugnant to the Constitution and invalid. Further, the Supreme Court held by a majority that the effect of its decision was that the impugned provisions were invalid ab initio and had never had the force of law. That latter aspect of the decision of the Supreme Court arose in the context of a question which the Supreme Court considered, at the request of the Attorney General, following the declaration of invalidity. The question was formulated as follows by Henchy J. (at p. 306):

“Where the plaintiffs have paid, or have had deducted from their earnings, income tax collected under statutory provisions which were subsequently declared unconstitutional, can they recover back such income tax. If so, to what extent?”
6.2 Henchy J. considered the implications of an Act of the Oireachtas being declared to be invalid having regard to the provisions of the Constitution. He stated (at p. 313):
“Once it has been judicially established that a statutory provision enacted by the Oireachtas is repugnant to the Constitution, and that it therefore incurred invalidity from the date of its enactment, the condemned provision will normally provide no legal justification for any acts done or left undone, or for transactions undertaken in pursuance of it; and the person damnified by the operation of the invalid provision will normally be accorded by the Courts all permitted and necessary redress.”
6.3 Having given an example of a situation in which the normal outcome had occurred (that the Supreme Court in Re Haughey [1971] I.R. 217, having declared the relevant provision unconstitutional, proceeded by way of ancillary relief to quash a conviction and sentence that had been made and imposed in pursuance of the condemned statutory provision), Henchy J. went on to make it clear that the normal outcome does not apply in every circumstance in the following passage (at p. 314):
“But it is not a universal rule that what has been done in pursuance of a law which has been held to have been invalid for constitutional or other reasons will necessarily give a good cause of action: …. While it is central to the due administration of justice in an ordered society that one of the primary concerns of the Courts should be to see that prejudice suffered at the hands of those who act without legal justification, where legal justification is required, shall not stand beyond the reach of corrective legal proceedings, the law has to recognise that there may be transcendent considerations which make such a course undesirable, impractical, or impossible.”
Counsel for the defendant emphasised the first sentence in that passage. In relation to the second sentence, it is clear from the following paragraph that Henchy J. was there addressing both constitutional and non-constitutional contexts in that he listed various factors which are recognised as being bars to what would otherwise be justiciable and redressable claims: laches, the Statute of Limitations, res judicata and such like.
6.4 Although Henchy J. did point out that, for a variety of reasons, the law recognises that, in certain circumstances, to adopt the terminology used by Griffin J. in his judgment (at p. 331), “the egg cannot be unscrambled”, or should not be, he deliberately avoided any general consideration of the broad question as to when, and to what extent, acts done on foot of an unconstitutional law may be immune from suit in the courts, stating that any conclusion he might have expressed would in the main be obiter. He continued (at p. 315):

“In any event, I think experience has shown that such constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the concrete facts of a specific case. I confine myself, therefore, to the precise question raised. Notwithstanding the invalidity ab initio of the condemned sections, are the taxes collected under them recoverable?”
Counsel for the defendants properly emphasised that Henchy J. made it clear that each case must be examined on its own facts.
6.5 While he advocated, and in that passage practised restraint, it is worth recording the reasons to which Henchy J. pointed as contra-indicating attempting to “unscramble the egg”, which are set out (at p. 314):

“The irreversible progressions and bye-products of time, the compulsion of public order and of the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality – even irreversibility – that tends to attach to what has become inveterate or has been widely accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise void, law into an acceptable part of the corpus juris. This trend represents an inexorable process that is not peculiar to the law, for in a wide variety of other contexts it is either foolish or impossible to attempt to turn back the hands of the clock”
6.6 On the facts, the majority of the Supreme Court found that the plaintiffs, Mr. and Mrs. Murphy, were only entitled to limited recoupment and fixed the date as and from which they were entitled to be repaid the sums collected from them by way of tax invalidly imposed was the first day of the financial year immediately succeeding that in which they had challenged the validity of the imposition of the tax in question. In broad terms, the rationale of that finding was the application of what Henchy J. referred to as one of the first principles of the law of restitution on the ground of unjust enrichment – that the defendant should not be compelled to make restitution, or at least full restitution, when, after receiving the money in good faith, his circumstances have so changed that it would be inequitable to compel restitution. On the facts of the case, he found that the State, in its executive capacity, had received the money which represented the excessive deductions of tax from Mr. and Mrs. Murphy in good faith, in reliance on the presumption of the constitutionality of the impugned provisions. In every tax year until the proceedings were instituted, the State had justifiably altered its position by spending the taxes collected and by arranging its fiscal and tax policies and programmes accordingly.
6.7 The remedy which Mr. and Mrs. Murphy were afforded was in the nature of restitution. However, it is clear from the judgment of Henchy J. that “permitted and necessary redress” will normally be accorded to the person damnified by the operation of the invalid provision, which obviously would include an award of damages in an appropriate case.

7. An Blascaod Mór Teo v. Commissioners of Public Works (No. 4)
7.1 Chronologically, this is the first case in which this Court has had to consider whether the Court may award damages against the State for the adverse effects of the passing by the Oireachtas of an Act which has been held to be invalid having regard to the provisions of the Constitution on the litigant who claims that he is thereby damnified.

7.2 The plaintiffs in that case had been successful in a challenge to the constitutionality of provisions of An Blascaod Mór National Historic Park Act 1989. In An Blascaod Mór Teo v. Commissioners of Public Works (No. 3) [2000] 1 IR 6, the Supreme Court had held that the Act, a provision of which distinguished between lands on the Great Blasket Island which could be acquired compulsorily for the purposes of the National Park (including lands owned by the plaintiffs), and lands which could not be so acquired (being land owned or occupied by a person who had owned or occupied it since 17th November, 1953, and was ordinarily resident on the Island before that date, or land owned or occupied by a relative of such person) was based on the principle of pedigree, which appeared to have no place in a democratic society committed to the principle of equality, was, therefore, invalid having regard to the provisions of the Constitution. The Supreme Court had further held that there was no legitimate legislative purpose for the unfair treatment of the plaintiffs as compared with persons who owned or occupied and resided on the island prior to 1953 and their descendants. As the distinction was central to the Act, the Act fell in its entirety.

7.3 When the matter came back to the High Court, Budd J., by agreement of the parties, considered, as a preliminary issue, the question whether the Court could award damages against the State for the effects of the passing by the Oireachtas of the Act of 1989, which had been found to be unconstitutional.

7.4 In addressing the issue, Budd J. considered a number of bases on which the State’s liability might be founded. In relation to the contention of the plaintiffs that the State was strictly liable to compensate plaintiffs, particularly a very restricted category of plaintiffs, for loss and damage caused by unconstitutional legislation, having quoted the passage from the judgment of Walsh J. in Meskell v. Coras Iompair Éireann [1973] I.R. 121 to the effect that, “if a person has suffered damage by virtue of a breach of a constitutional right or the infringement of a constitutional right, that person is entitled to seek redress against the … persons who have infringed that right”, Budd J. went on to say (at p. 581):

“The nature of the relationship between a citizen and the State is complicated by the obligations of the State which, through its organs or agents, must engage in such activities as policing, imprisoning and legislating. In the course of making laws, the legislature frequently has to take into account conflicting individual rights and the exigencies of the common good within a process involving balancing and adjusting the scope of rights. There is therefore little justification for a regime of strict liability for an infringement of a constitutional right where such rights are competing and in conflict. In such circumstances ‘ubi ius ibi remedium’ is too simple a formula and strict liability would in many cases be too low and easy a threshold to reach.”
7.5 Later, Budd J. considered the extent to which the State should be liable for legislative acts in the light of the jurisprudence on the liability of the State for executive action and, in particular, the decision of the Supreme Court in Pine Valley Developments Ltd. v. Minister for the Environment [1987] I.R. 23. He quoted the passage from the judgment of Finlay C. J., in which he concluded as follows (at p. 38):
“I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims from compensation where they act bona fide and without negligence. Such immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved.”
7.6 Budd J. also quoted the passage from the concurring judgment of Henchy J. in the Pine Valley case (at p. 43) in which he stated that he considered “the exemption of the State from liability in damages for the Minister’s invalid planning permission is not alone not an unconstitutionality but is in harmony with the due operation of the organs of government established under the Constitution”. Budd J. went on to comment (at p. 584):
“The Minister in that case was performing an administrative function but the court appears to have regarded him as having a quasi-immunity in his role of discharging this public duty. It is considered that the members of the Oireachtas enjoy absolute privilege in respect of statements in either House. If the Minister enjoys a quasi-immunity in respect of administrative acts, it seems that only in exceptional circumstances could the State be made liable for damages in respect of invalid legislation where the legislature is involved in the balancing of the protection of the right of private property against other obligations arising from the common good.”
Counsel for the defendants emphasised the last sentence in that quotation. It was submitted that it would be invidious if a less restrictive approach were to be taken in respect of invalid legislation than in respect of the exercise of a statutory power, particularly, where Article 40 requires the State to weigh in the balance conflicting factors.
7.7 Understandably, Budd J. considered the question of State immunity in the context of the decision of the Supreme Court in Byrne v. Ireland [1972] I.R. 241 and pointed out that since that decision the State had frequently been sued and damages had been awarded against the State for breach of constitutional rights and redress had been afforded to the citizen by relief usually modelled on the remedies given in tort. He analysed (at p. 585 et seq.) the approach the courts have adopted to infringements of constitutional rights and identified three different approaches. The first was to proceed on the basis that the definition of the scope of a right prescribes the circumstances in which the right may be exercised, instead of the focus being on the question of the carelessness or intention of the infringer of the right, the strict approach, which Budd J. questioned again, while stating that he did not think that the infringement could be taken in isolation from its context, as the detrimental effect on a person’s right may have to be balanced against others’ rights and the needs of the common good, the point emphasised by counsel for the defendants. The second was to require that there should be proof of intent to infringe the right or negligence on the part of the infringer, which could give rise to difficulty, in that the need for those ingredients might impede the protection for a constitutional right. The third was the pragmatic approach adopted by Henchy J. in the Murphy case – that such matters as the remedies for infringement of rights are best dealt with in the factual context of each case.

7.8 In setting out his conclusion on the issue, Budd J. stated (at p. 590):

“While I do not accept that the Oireachtas has total immunity in respect of legislation, since the courts are specifically given the mandate to review legislation for repugnancy, nevertheless for public policy reasons, it seems to me that there must be considerable tolerance of the legislature particularly when it has to weigh in the balance conflicting rights. …
If the judiciary is to proceed resolutely but cautiously in relation to redress where a claim is brought in a recognised type of suit based on tort when an Act is found to be invalid, then the court should be all the more reticent where the claim is based on the effects of the actual enactment of an invalid Act.

My conclusion is therefore that under Articles 15.4.2o and 34.3.2o of the Constitution the court has jurisdiction to declare an Act invalid and to give necessary and appropriate redress only for such damage as is proved to have flowed directly from the effects of the invalidity without intervening imponderables and events.”

7.9 On the facts before him, Budd J. stated that, having heard cursory evidence, he had concluded that there were a number of imponderables in respect of the heads of damage and that there was a lack of the type of direct causal link necessary. The plaintiffs had never been dispossessed of their property. In the circumstances of the case, Budd J. concluded that the plaintiffs had been largely vindicated by the declaration of invalidity and that redress should not extend to damages.
7.10 Commenting on the decision of Budd J., in J.M. Kelly: The Irish Constitution (Fourth Edition), Hogan and Whyte, having quoted the first and last sentences of the last passage which I have quoted above, state (at para. 4.2.90):

“On the issue of principle, however, Budd J.’s conclusion is surely correct and the ruling itself would seem to be a direct consequence of the nature of the prohibition [on enacting any law which is repugnant to the Constitution or any provision thereof] contained in Article 15.4. The scope of this jurisdiction will surely be tested in the future by reference to cases presenting more problematic facts.”
7.11 In a further commentary on An Blascaod Mór case, in the context of considering whether damages may be awarded against the State for breach of constitutional duty, it is suggested in Kelly that the analogy drawn in An Blascaod Mór with the Pine Valley decision and the conclusion that only in exceptional circumstances could the State be liable in respect of invalid legislation where the legislation is involved in balancing the right to private property against other obligations arising from the common good may be questionable (para. 8.2.73). It is pointed out that the rationale which underlies the Pine Valley decision – that a Minister might be dissuaded from taking forthright action by threat of litigation – scarcely applies to the Oireachtas, especially where members enjoy personal immunity from suit. The conclusion of Budd J. that damages could be awarded in respect of an unconstitutional statute only for such damage as is proved to have flowed directly from the effects of the invalidity, if correct, it is suggested, on analysis may mean that a private citizen cannot recover for breach by the State of a constitutional imperative (which is not at issue in this case), or even for a breach of what would normally be regarded as a personal constitutional right – an analysis which the authors seem to question (para. 8.2.74).
7.12 An important feature of the decision of Budd J., in my view, is that, on the basis of the manner in which he conducted the trial, he was in a position to be satisfied that the plaintiffs had been largely vindicated by the declaration of invalidity. As a matter of fact, it is not possible to reach the same conclusion in this case at this juncture.

8. Redmond v. The Minister for the Environment (No. 2)
8.1 It is probably debateable whether the Redmond case presents “more problematic facts” than An Blascaod Mór case.

8.2 In the first round of the Redmond case, this Court (Herbert J.) had ruled that certain provisions of the Electoral Act 1992, and of the European Parliament Elections Act 1997, were unconstitutional insofar as they required candidates for general or European elections to pay a deposit. That decision is reported at [2001] 4 IR 61. In the second round of Redmond, Herbert J. stated that he was unable to accept the argument advanced on behalf of the defendants that the Court should either always decline, or should at least be very slow and then only in the most extreme circumstances, to make an award of damages against the legislative arm of the State for the infringement in an Act of the Oireachtas of a right guaranteed by the Constitution.

8.3 Having stated that it had been held by the Supreme Court in T.D. v. Minister for Education [2001] 4 IR 259 that the doctrine of separation of powers required that none of the three institutions of government be paramount, Herbert J. continued (at p.3):

“In my judgment, it is essential in a constitutional democracy such as this State, where a rule or convention of parliamentary sovereignty has no place, that the courts should have the power and be prepared, wherever necessary, to vindicate by ‘all permitted and necessary redress’, to borrow the phrase of Henchy J. in Murphy v. Attorney General . . . including, where justice so requires, by an award of damages, the constitutional rights of anyone, even where the transgression of those rights is in an Act of the Oireachtas passed into law by the votes of the elected representatives of the people and signed by the President. This does not amount to unwarranted judicial activism trespassing on the legislative function of the Oireachtas. No evidence was advanced at the hearing of this issue and I am not prepared to assume that this particular power and, indeed the duty of the courts, would in any way inhibit or interfere with the proper functioning of the legislative arm of the State within its own unique sphere of activity under the Constitution.”
8.4 Later, having referred to, inter alia, the decisions of the Supreme Court in Byrne v. Ireland and in Murphy v. Attorney General, Herbert J. continued (at p.4):
“. . . I am satisfied that this court does have full power to award damages, ordinary compensatory damages or aggravated or increased compensatory damages and even punitive or exemplary damages . . . against the legislative arm of the State for breach of a constitutional right by an Act of the Oireachtas or by a provision of such an Act. However, I do not think that it is reasonably possible or even desirable to attempt to formulate any principles of general application as to the circumstances in which the court might so award damages or as to the type or amount of those damages. In this respect, I adopt what was held by Henchy J. in Murphy v. Attorney General . . . , where he stated, when speaking of such redress and of the sometimes ‘transcendent considerations’ which may render any or some particular forms of redress unavailable, i.e. damages or restitution:- ‘in any event, I think experience has shown that such constitutional problems are best brought to solution, step by step, precedent after precedent, and when set against the concrete facts of a specific case’.”
8.5 In the Redmond case, Herbert J., having recorded that there was no evidence that the impugned legislation had occasioned the plaintiff any pecuniary loss or damage, awarded the plaintiff nominal damages of €130. He analysed and rejected a claim for loss of chance.
8.6 Counsel for the defendants submitted that the decision in Redmond (No. 2) should not be taken as supporting an entitlement to damages arising from invalidity of an Act of the Oireachtas for a number of reasons. First, while the State sought to appeal the decision awarding damages, the Supreme Court refused to deal with it on the basis that what it was being asked to consider was hypothetical, which I assume was predicated on the decision in Redmond (No. 1) not having been appealed. Secondly, it was suggested that the fundamental basis on which the declaration of unconstitutionality was made in Redmond (No. 1) was undermined by the subsequent decision of the Supreme Court in King v. Minister for Environment (No. 2) [2007] 1 IR 296, in which the decision in Redmond (No. 1) was overruled. Thirdly, it was submitted that in Redmond the fundamental issues of principle which were addressed by Budd J. in An Blascaod Mór case were not referred to and, in particular, no explanation was provided for a rule of law which would give rise to a liability in damages for bona fide legislative acts in circumstances where no similar liability arises in respect of bona fide administrative decisions.

9. D.K. v. Crowley
9.1 In D.K. v. Crowley [2002] 2 I.R. 744, the Supreme Court granted a declaration that s. 4(3) of the Domestic Violence Act 1996 (the Act of 1996) was invalid having regard to the provisions of the Constitution and made an order of certiorari quashing an interim barring order which D.K.’s wife had obtained against him on a ex parte application pursuant to section 4(3). The Supreme Court held, inter alia, that the procedures prescribed by s. 4(1), (2) and (3) of the Act of 1996, in failing to prescribe a fixed period of relatively short duration during which an interim order made ex parte was to continue in force, deprived the respondents to such applications of the protection of the principle of audi alteram partem in a manner and to an extent which was disproportionate, unreasonable and unnecessary.

9.2 Subsequently, the matter having been remitted to the High Court, on 29th July, 2005 Abbott J. delivered judgment on the claim by the applicant D.K. against the defendants (Judge Timothy Crowley, Ireland and the Attorney General) for damages for loss and damage as a result of a breach of his constitutional rights and of false imprisonment arising from the making of the interim barring order, which had been quashed by the Supreme Court. The applicant was awarded €214,000 damages.

9.3 At the hearing of this issue, this Court was informed by counsel for the defendants that no issue of principle was decided in the High Court because the State had not raised in the High Court any issue as to the Court’s entitlement to award damages in respect of unconstitutional legislation. However, the issue was raised on an appeal in the Supreme Court and the Supreme Court had reserved judgment on whether the State was entitled to raise the issue on the appeal, it not having raised it before the trial Judge. Judgment had not been delivered in the Supreme Court, when this issue was before this Court, but it has since been delivered.

9.4 Having considered the judgment of the Supreme Court, which was delivered by Murray C.J. on 12th May, 2010, I was satisfied that it was not necessary to re-list this issue for further argument before giving this judgment, in view of the position I propose adopting.

9.5 What the judgment of Murray C.J. discloses is that D.K.’s claim was heard and determined in the High Court as an assessment only, the State appellants having decided not to contest liability. In the Supreme Court, the appellants sought to amend the notice of appeal to include a ground of appeal that the High Court Judge should not have awarded damages to D.K. without first having determined the issue whether the courts have jurisdiction to award damages in respect of the passing by the Oireachtas of a law affecting personal rights that is subsequently found to be unconstitutional and that the High Court Judge ought to have found, as a matter of law, that the appellants had no liability to D.K. in respect of any infringement of his constitutional rights arising solely from the passing by the Oireachtas of legislation and/or implementation and application to the respondent in good faith and without malice of those provisions. The appellants also sought an order remitting the proceedings to the High Court for determination of the issue of the State’s liability for damages. The application to amend the notice of appeal and to have the matter remitted to the High Court on the issue of liability was refused by the Supreme Court.

9.6 In relation to the merits of the appeal, Murray C.J. recorded that it had been conceded by counsel for the State that, if the Court were to proceed with the hearing as an assessment of damages, that would be unsatisfactory because the basis for the award would not have been identified. Commenting that that approach was correct, Murray C.J. continued:

“It is undoubtedly the case that in certain circumstances the State is liable to pay compensation to individuals for breach of their constitutional rights. This may be particularly so when the State at the time the damage was caused, was acting unlawfully and with mala fides or in misfeasance of public office.
It is an altogether different matter to determine the liability of the State, including its vicarious liability, for acts bona fide done by a judge exercising his jurisdiction under a law which at a time enjoyed the presumption of constitutionality or other bona fide exercise of statutory powers which also enjoyed such a presumption.”

The observations in the last sentence, in my view, could be made in relation to the plaintiff’s claim for damages in this case. However, this is not the appropriate time to explore the similarities between the D.K. case and this case in terms of the legal basis of the claim for damages in each. However, the position I have decided to adopt in this case is informed by later observations of Murray C.J. when, having considered the judgment of Barrington J. in the McDonnell case, he emphasised the importance of identifying the legal criteria in a case such as the D.K. case for awarding and assessing the quantum of damages, for example, in the case of damages claimed for loss of reputation and good name. In this case the plaintiff has pleaded that s. 260 has affected his right to his good name. Therefore, it seems to me that there can be no “shortcut” to the determination of the remaining issues in this case and the parties will have to have regard to the observations of Murray C.J.
9.7 Prior to dismissing the appeal on quantum because the State had not demonstrated any valid basis on which it could seek to impugn the decision of the High Court, Murray C.J. stated as follows:

“In the light of the foregoing considerations and the manner in which the State admitted liability, it is simply impossible for this Court to embark on a consideration of heads of damage or their quantification. To attempt to do so would require the Court to endeavour to make a range of speculative assumptions as to the scope of the liability of the State, and indeed the very principle of such liability, for the adverse effects on individuals generally of a statute declared to be unconstitutional. To endeavour to address issues concerning the review and quantification of damages when the High Court has not identified any legal basis for liability in this case due to the general concession made by the State, would be, at best a dubious exercise in the abstract.”

10. McDonnell v. Ireland
10.1 Unlike the plaintiff in these proceedings and the plaintiffs in An Blascaod Mór case and in the Redmond case, the plaintiff in the McDonnell case did not challenge the constitutionality of s. 34 of the Offences Against the State Act 1939, but was relying on a successful challenge some years previously in Cox v. Ireland [1992] I.R. 53, in which the Supreme Court had held that s. 34 was unconstitutional. Under s. 34, whenever a person holding an office in the Civil Service was convicted by the Special Criminal Court of a scheduled offence, for example, membership of an unlawful organisation, he would immediately on such conviction forfeit that office. Mr. McDonnell, who was an established civil servant at the time, was convicted of membership of a proscribed organisation by the Special Criminal Court in May 1974, whereupon he was treated as having automatically forfeited his position. Following the decision in the Cox case, he instituted proceedings claiming that his purported dismissal in 1974 was unconstitutional and had no legal effect. His claim was formulated as a claim for damages for alleged breach of his constitutional rights, invoking his right to earn a livelihood and his property rights. The Supreme Court upheld a decision of the High Court (Carroll J.) that his claim, which on the appeal to the Supreme Court was against Ireland, the Attorney General and the Minister for Communications, was statute-barred. It was held that a breach of constitutional rights is a civil wrong which is remediable by an action for unliquidated damages which, having regard to the flexible and evolving nature of tort law, could be described as a tort and, therefore, was within the ambit of s. 11(2) of the Statute of Limitations 1957.
10.2 By way of general observation, in my view, the decision of the Supreme Court in the McDonnell case, which, unlike the position in this case, was based on a claim made by a litigant who had not successfully challenged the validity of the impugned provision, is of no precedential relevance to the issue which is before this Court. However, some aspects of the judgments delivered in the Supreme Court were alluded to by counsel for the defendants and do give guidance as to the general approach to be adopted on the issue which is now before the Court.

10.3 A point raised by the judgment of Keane J., as he then was, in relation to the Cox case is of interest but, unfortunately, neither the judgments in the McDonnell case nor the submissions made by counsel for the defendants are in any way enlightening on the point. Keane J. pointed out (at p. 152) that in the Cox case, while the High Court (Barr J.), had found that Mr. Cox was entitled to damages in respect of the loss of his teaching post, he had adjourned further hearing on that issue to enable evidence to be adduced as to damages. That part of the judgment of Barr J. was not the subject of an appeal and, in consequence, the Supreme Court was concerned only with the issue of the validity of s. 4 having regard to the provisions of the Constitution. Therefore, it is not clear what ultimately happened to the claim for damages in the Cox case.

10.4 The main argument which counsel for the defendants have developed in reliance on the McDonnell case is based on a passage from the judgment of O’Flaherty J. (at p. 143), in which, having noted the position of the majority in the Murphy case that, when a declaration of invalidity of an Act of the Oireachtas is made, the legislation is void ab initio, O’Flaherty J. went on to consider the practical application of the legislative provision from the time it comes into force until it is declared to be invalid. He stated:

“Members of society are given no discretion to disobey such law on the ground that it might later transpire that the law is invalid having regard to the provisions of the Constitution. Every judge on taking office promises to uphold ‘the Constitution and the laws’; the judge cannot have a mental reservation that he or she will uphold only those laws that will not some day be struck down as unconstitutional. We speak of something as having ‘the force of law’. As such, the law forms a cornerstone of rights and obligations which define how we live in an ordered society under the rule of law. A rule of constitutional interpretation, which preserves the distinct status of statute law which, as such, is necessitated by the requirements of an ordered society and by ‘the reality of situation’ (to adopt Griffin J.’s phrase), should have the effect that laws must be observed until struck down as unconstitutional. The consequences of striking down legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity. This is what occurred in Murphy . . . as well as in Cox . . .”
10.5 The obligation of all persons, including the State, to obey the law once it is enacted, it was submitted on behalf of the defendants, is a further reason why there should be no award of damages. To hold the State liable in damages on the basis that a law has been declared to be invalid would put the State in an impossible position. To impose liability in such circumstances would be to establish a far-reaching principle which could ultimately undermine the rule of law and the respect shown for the law.
10.6 As regards a person in the position of the plaintiff who has successfully challenged the validity of a statutory provision, that proposition is not in line with the decision of the Supreme Court in the Murphy case, nor is it in line with the observations of O’Flaherty J., because the plaintiff is in a similar position to the plaintiffs in the Murphy case and the Cox case.
11. The submissions focusing on s. 260
11.1 While, the broad thrust of the submissions made on behalf of the defendants was to analyse and extrapolate from the authorities which bear on the issue which the Court has been asked to determine, in addition to analysing the judgment of the Supreme Court on the substantive issue of the invalidity of s. 260, counsel for the defendants addressed some matters which are specifically related to s. 260.

11.2 It was submitted that the Court should apply the principle adumbrated by Budd J. in An Blascaod Mór case and adopt an approach of considerable tolerance to the legislature in relation to s. 260 because the task of the legislature was to balance competing interests. As regards s. 260 of the Act of 1945, it was submitted that the Oireachtas was self evidently attempting to achieve a balance between the competing concerns of providing proper mental treatment for persons with mental illness and of protecting the rights of such persons, on the one hand, and of protecting those treating them, on the other hand. The provision was self evidently directed towards the common good. Although the legislature got the balance wrong in respect of the pre-conditions for instituting proceedings, that should not form the basis of a claim for damages, it was submitted.

11.3 It was also submitted that the very lengthy period of time which has elapsed since the enactment of the Act of 1945 is a factor to which the Court should have regard. It was also suggested that it was relevant that the objectives of the Act of 1945 generally in the context of Article 40.1 of the Constitution could be regarded to have received the imprimatur of the Supreme Court in Re Philip Clarke [1950] I.R. 235 and more recently in Croke v. Smith (No. 2) [1998] 1 I.R. 101. Indeed, on the basis of the observations made by Murray C.J. in A v. Governor of Arbour Hill Prison [2006] 4 IR 88 (at pp. 129 – 130) as to the Constitution being viewed “as a living document” which falls to be interpreted “in accordance with contemporary circumstances including prevailing ideas and mores”, and that it is entirely conceivable, therefore, that an Act found to be unconstitutional in the twenty first century might well have “passed constitutional muster” in the 1940s and 1950s, in my view, on the basis of the case law on the Act of 1945, it is conceivable that a challenge to the validity of s. 260 would not have been successful had it been brought even a decade earlier than the plaintiff initiated these proceedings.

11.4 It is noteworthy that s. 260 was applied by the Supreme Court, albeit not in contexts in which its constitutional validity was at issue, on a number of occasions, examples relied on by counsel for the defendants being O’Dowd v. North Western Health Board [1983] ILRM 186 and more recently in Murphy v. Green [1990] 2 I.R. 566. In the O’Dowd case the majority of the Supreme Court held on the facts that there were no substantial grounds for the contention that the medical practitioners against whom allegations were made had acted without reasonable care. In the later case, all five Judges of the Supreme Court held on the facts that the plaintiff had not established substantial grounds that the proposed defendant, a medical practitioner, had acted in bad faith or without reasonable care. Although counsel for the defendants did not press this point, it has to be observed that, as regards the factual complaints which form the basis of the plaintiff’s claim in these proceedings, the Supreme Court adopted a consistency of approach in the application of s. 260 before it was declared invalid, as is evidenced by the outcome of the three occasions (outlined in para. 3.4 earlier) on which the plaintiff sought to get leave to institute proceedings governed by s. 260. On each occasion, the decision of the Supreme Court precluded the proceedings being prosecuted. On the last two occasions, in respect of which there are judgments of the Supreme Court, the Supreme Court upheld the decision of the High Court on the basis that the plaintiff had no substantial grounds for contending that the proposed defendants acted in bad faith or without reasonable care.

11.5 The significance attached by the defendants to the substitution of s. 260 by s. 73 of the Act of 2001 was that it was contended that the plaintiff is now entitled to bring proceedings in respect of acts purporting to have been done in pursuance of the Act of 1945 of which he complains. Further, the effect of the declaration of invalidity of s. 260 was compared with the effect of the invalidity of the statutory provision impugned in the Redmond and Cox cases. In respect of the declaration by the Supreme Court of the invalidity of s. 260, it was submitted, that its effect was to give the plaintiff the very right he claimed, which was the right to commence proceedings against persons who had purported to act in respect of the plaintiff in reliance on the Act of 1945. Accordingly, it was submitted, the wrong complained of has been remedied by the declaration of invalidity. That was in contrast to the position in Redmond, where the plaintiff had lost his opportunity of putting himself forward as a candidate at an election and the opportunity once lost could not be revived, or the situation in Cox, where the plaintiff had lost his job as a result of the provision which had been held to be invalid. In this case, it was submitted, the plaintiff has not lost his right to claim damages for the alleged wrongdoing in connection with his detention, but rather the effect of the declaration of invalidity has been to accord him that very right.

11.6 The distinction which the defendants have sought to draw as to the effect of the striking down of s. 260 by comparison to the striking down of other statutory provisions, in my view, wholly ignores the reality of the situation of the plaintiff now. Any action which the plaintiff might have obtained leave to initiate at any time after the decision of the High Court in this case in December 2004, which sought redress by way of damages for events which happened in 1984, 1987 and 1991, would inevitably have been met with a plea that the action was statute-barred. Just a decade ago in Blehein v. Murphy (No. 2), which concerned an application for leave by the plaintiff under s. 260 in relation to the events of 1987 in the 1998 proceedings , Keane C.J. stated (at p. 266):

“It is quite clear that any proceedings which were now instituted would be well outside the limitation period prescribed by the Statute of Limitations, 1957, and that none of the provisions of that Act or the Statute of Limitations (Amendment) Act, 1991, enabling proceedings to be brought outside the limitation period in cases of fraud, mistake or (in the case of personal injuries) lack of knowledge, relied on by the plaintiff, have any application to the facts in this case.”
Keane C.J. did go on to state that it could be said that, in theory at least, if leave were granted, the defendant might contest the action on the merits rather than to plead that it was statute-barred, but, as against that, he stated that it could be argued that the fact that there was an absolute defence available to a defendant because of lapse of time was a ground on which the Court was entitled to refuse leave. In the event, he considered it unnecessary to address that issue because the plaintiff had not established a substantial ground under the provision which was subsequently declared to be invalid. Therefore, the reality is that a declaration of the invalidity of s. 260 did not open the way to enable the plaintiff to get redress by way of damages for the wrongs he alleged were perpetrated against him in 1984, 1987 and 1991 against the third parties whom he alleges perpetrated those wrongs.

12. Conclusions
12.1 It could hardly be open to contradiction to suggest that this case presents “more problematical facts” than An Blascaod Mór case or, indeed, any other case in which the issue which the Court has to determine was considered. In setting out my conclusions on the issue raised by the defendants insofar as I consider it appropriate to reach conclusions at this juncture, I propose to do so by reference to the guidance given by Henchy J. in the Murphy case and with regard to the basis on which the Supreme Court held that s. 260 is invalid having regard to the provisions of the Constitution.

12.2 In essence, what the defendants assert is that the State is immune from liability for any loss or damage which the plaintiff incurred as a result of acts done in purported reliance on the Act of 1945, which he alleges were wrongful and which he was unable to pursue in litigation before s. 260 was struck down on the ground of unconstitutionality. In considering that assertion, I am acutely conscious of the caveat issued by Henchy J. as to the inadvisability of entering on a general consideration of such a fundamental issue of constitutional law. Accordingly, I will deal with the issue against the facts of this case as they are before the Court, although it is doubtful that, constrained as the Court is by having to rely on the defendants’ statement of facts, they can be accurately described as what Henchy J. referred to as “concrete facts”.

12.3 The plaintiff’s case is that he has suffered damage as a result of the application of s. 260 to him and that he is entitled to redress for that damage. The redress which the plaintiff seeks is damages. He has formulated his claim for damages as damages “for infringement of constitutional rights, for personal injury, loss and damage”. As is pointed out in Kelly (para. 8.2.69) it is clear that an action lies in respect of “a breach of a ‘personal’ constitutional right”. The Supreme Court has found in this case that the application of s. 260 to a person in the position of the plaintiff was a disproportionate restriction of his constitutional right of access to the courts, in the context where his fundamental constitutional right to liberty had itself been restricted, and, as such, s. 260 infringed the plaintiff’s personal constitutional rights. In determining whether the plaintiff has incurred damage and whether the damage is redressable, it is necessary to analyse what the effect of s. 260 was on the plaintiff before it was struck down and how, in its application, it impacted on him as set out in the statement of facts.

12.4 The effect of s. 260 was to preclude the plaintiff from instituting civil proceedings against a person or institution for acts done in purported reliance on the provisions of the Act of 1945 save with leave of the Court. On the basis of the agreed facts, s. 260 impacted on the plaintiff in that he was –

(a) precluded from prosecuting the 1997 proceedings against St. John of God Hospital, because the proceedings were struck out for failure to obtain leave under s. 260,
(b) refused leave to issue the 1998 proceedings against six named defendants, which he sought leave to issue under s. 260 in 1999, and

(c) refused leave to issue the 1999 proceedings against St. John of God Hospital, which he sought leave to issue under s. 260 in 2000.

All of those proceedings related to wrongs alleged to have been perpetrated against the plaintiff arising out of the invocation of the provisions of the Act of 1945 in connection with his transportation and admission to, and his detention and treatment in, St. John of God Hospital in 1984, 1987 and 1991. As I understand it, the remedy he would have sought against the intended defendants was damages, although the factual foundation on which he would have sought that remedy is only partially covered in the statement of facts on the basis of inferring that his detention was involuntary.
12.5 In this assessment of the plaintiff’s claim in these proceedings I am not taking into account the judicial review proceedings of 1996 which, prima facie, were not within the ambit of s. 260.

12.6 Such damage, if any, as the plaintiff suffered by the application of s. 260 to him in the instances which I have summarised must be the consequence of being deprived of an opportunity to establish an entitlement to damages against the intended defendants by not being allowed to prosecute those proceedings. If he would have been successful in any or all of the proceedings, had he been allowed to pursue them, then he has been deprived of any damages which he would have been awarded, taking account, of course, of any overlap between the claims in the three sets of proceedings. Necessary redress, to adopt the terminology used by Henchy J., would involve compensation for that deprivation and the resulting loss. As subs. (3) of s. 260 was not held to be invalid per se, in order to be successful, if he had been granted leave, the plaintiff would have had to satisfy the Court in the substantive proceedings that the defendants or one or more of them had acted in bad faith or without reasonable care.

12.7 The foregoing analysis does not take cognisance of whether there may be what Henchy J. referred to as “transcendent considerations” which may render affording redress to the plaintiff (i.e. allowing him to claim damages against the State for being deprived of the capacity to sue intended defendants who had acted in reliance on the Act of 1945 whom he alleges acted wrongfully) undesirable, impractical or impossible. It does not seem to me that it would be either impractical or impossible, as distinct from difficult, to determine whether such redress should be afforded to the plaintiff in these proceedings in which he successfully challenged the validity of s. 260 in accordance with established principles, although such principles would have to be identified. Obviously, in order to succeed in his claim for damages against the State, he would have to prove that, in the proceedings which he was prevented from initiating, he would have established to the satisfaction of the Court wrongdoing in the form of bad faith or want of reasonable care on the part of the intended defendants or one or some of them and also that the damage and loss he alleges he suffered was a consequence of that wrongdoing. While, given the manner in which the issue is now before the Court, whether he would have succeeded is an imponderable, nonetheless, I do not think it can be said that it would be either impractical or impossible to determine whether he would have succeeded against all or any of the intended defendants. Whether it would be undesirable to afford redress to the plaintiff in the unusual circumstances which prevail here is the fundamental question.

12.8 Viewing the plaintiff’s claim for redress consequential on his successful challenge to s. 260 as a claim for damages for infringement of his constitutional rights raises the question whether the plaintiff should be treated any differently, because the infringement of his personal constitutional rights of which he complains arose from the application of an unconstitutional statutory provision to him, than he would be treated if the infringement arose, say, as a result of the actions of somebody for whom the State is vicariously liable. An example of the latter situation is to be found in the actions of prison officers in Kearney v. Minister for Justice [1986] I.R. 116 in breaching the plaintiff’s right to communicate by non-delivery of his mail to him, which led to the first award of damages, which were nominal, for breach of constitutional rights, a case which was followed in the Redmond case. It may be that, in order to answer that question, one is brought back full circle to the fundamental question whether it would be undesirable not to treat the plaintiff differently because of the existence of transcendent considerations.

12.9 In addressing that question, a crucial factor undoubtedly would be the basis on which the Supreme Court decided the invalidity of s. 260 – that the right of the plaintiff which was infringed was his constitutional right to access to the court in the context of his fundamental right to liberty having been restricted, which on any consideration of the hierarchical framework of constitutional rights must be a serious infringement. The nature and extent of the adverse impact on him resulting from such civil wrong as the plaintiff would have been in a position to establish in the litigation which he was precluded from prosecuting would also be a factor. As regards countervailing factors, a matter which could be regarded as being significant would be the status of the Act of 1945 for almost 60 years after its enactment, the presumption that it was constitutionally valid and the manner of its application generally. In the particular context of this case, a significant factor would probably be the consistent manner in which s. 260 was applied by the Supreme Court, from which it would have been reasonable to deduce that s. 260 was “an acceptable part of the corpus juris”. There may be other factors which would be relevant. However, I am of the view that to embark on the task of weighing such factors in the balance, partly in the abstract, would be undesirable. It would also be undesirable to embark on the determination of such a fundamental issue as is raised by the defendants at all, if it is unnecessary to do so.

12.10 It may be, however, that it will not be necessary at all, and at this juncture it is not desirable or appropriate, in circumstances which, in my view, in reality are tantamount to deciding the issue partly in the abstract, to determine whether transcendent considerations exist which render it undesirable that the plaintiff be awarded damages on the ground that the basis of the infringement of his constitutional rights is that a statutory provision which has been found to be unconstitutional was applied to him. If it is not necessary to do so, because there is an answer to the plaintiff’s claim to damages which exclude it at a more basic level than determining whether the plaintiff’s constitutional rights are transcended, as urged by the defendants, for example, by virtue of some statutory provision or rule of common law, in my view, it would be unwise to attempt to resolve such a fundamental issue. In making that comment and the following comments, it is important to stress that I have formed no view as to whether the claim for damages would succeed apart from that issue. For instance, it may be that, aside from the jurisdictional argument raised by the defendants, it is the case that the plaintiff cannot establish that he has suffered recoverable loss by the application of s. 260 to him or that his claim in respect of loss and damage is not maintainable, for example, because he could not have met the requirement of subs. (3) of s. 260, or it can be absolutely defended in these proceedings on some other legal ground, for example, because the claim is statute-barred.

12.11 Further, in the light of the observations of Keane C.J. quoted in paragraph 11.6 above, it would seem that there may be a possible basis on which proceedings which the plaintiff was precluded from prosecuting because of the application of s. 260 to him might have been unsuccessful. That is on the basis of the application of the Statute of Limitations 1957, as amended. As I understand the position, in the substantive proceedings on the constitutionality of s. 260 in this Court and on appeal in the Supreme Court, it was not argued that the defendant had no locus standi to challenge the validity of s. 260 on the basis that any claim he might have had against the proposed defendants in the three actions he sought to initiate would have been statute-barred. It is to be noted that in the 1999 proceedings, in delivering judgment in the Supreme Court, McGuinness J. stated that the plaintiff was in a position to argue that he had locus standi to maintain constitutional proceedings. However, the defendants have pleaded in these proceedings that, if the plaintiff has sustained or suffered personal injury, or loss or damage, his claim is statute-barred by virtue of s. 11(2) of the Statute of Limitations 1957, as amended by s. 3(1) of the Statute of Limitations (Amendment) Act 1991, although the plea seems to be related to the claim for damages for personal injuries only. It seems to me that, before the Court is required to determine the fundamental question to which the issue raised by the defendants gives rise, the issue of the application of the Statute of Limitations to the plaintiff’s claim for damages should be addressed first.

12.12 Accordingly, while at this juncture I am not ruling out the possibility of having to determine the issue which the defendants have asked the Court to determine, I am postponing such determination until the issues of the maintainability of the proceedings which he was precluded from prosecuting and the defences pleaded by the defendants, including their reliance on the Statute of Limitations, assuming the defendants are persisting in that defence, have been considered by reference to the relevant evidence. Having regard to the observations of Murray C.J. in the D.K. case, which I have recorded at para. 9.6 above, I consider that, if the Court has to assess damages, the legal basis for liability of the State will have to be determined by the Court with regard to each head of damages.

12.13 I will hear further submissions from the parties as to how the matter should proceed from here.

BG v Judge Murphy

[2011] IEHC 359

JUDGMENT of Mr. Justice Hogan delivered on the 20th day of September, 2011
1. The Criminal Law (Insanity) Act 2006 (“the 2006 Act”) may be said to represent a modern, enlightened and humane response on the part of the Oireachtas to the plight of those afflicted by mental illness so far as their criminal responsibility is concerned. These judicial review proceedings present, however, a difficult point of statutory interpretation so far as one aspect of the construction of the 2006 Act is concerned.

2. The problem arises in the following fashion. The applicant is a 49 year old man with significant mental disabilities and intellectual deficits who has been charged with the sexual assault of a female, contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 (as amended)(“the 1990 Act”). It is clear from the medical evidence which is exhibited to the applicant’s solicitor’s affidavit that his treating consultant psychiatrist does not consider that he is fit to stand trial within the meaning of s. 4(2)(c) of the 2006 Act. I express no view on that question, but merely draw attention to this evidence in order to highlight the concerns which his legal advisers must properly have had in relation to this matter.

3. When the applicant originally came before the District Court in January 2010 it was indicated to the court that the Director of Public Prosecutions would consent to summary disposal of this indictable offence only if the applicant pleaded guilty. There then followed a series of adjournments which were variously designed to facilitate the making of appropriate disclosure by the prosecution and to obtain appropriate professional legal and psychiatric evidence. Matters came to a head in July 2010 when the Director outlined his position in writing:-

“The DPP directed that the charge before the court proceed on indictment pursuant to s. 13 of the Criminal Procedure Act 1967. There is consent to the matter being disposed of if all the conditions of that section are met.
Since a fitness to plead issue has arisen, the accused is not in a position to enter a plea, therefore s. 13 of the Criminal Procedure Act cannot be utilised. The fitness to plead issue therefore has to be determined by the Circuit Court.

We will be making the application for the accused to be returned for trial for the fitness to be tried issue to be determined.”

4. Following a full hearing on 23rd July, 2010, on the issue, District Judge Murphy concluded that she had no jurisdiction in the matter, save in the event that the applicant pleaded guilty. The prosecution solicitor, Ms. Farrell, confirmed that the Director wanted the issue of the applicant’s fitness to plead to be sent forward for hearing to the Circuit Court. District Judge Murphy acceded to this submission and then sent the applicant forward on bail to the next sittings of the Dublin Circuit Court so that his fitness to plead could be determined by a judge of that Court.
5. Here, then, is the nub of the main problem in this matter, namely, which court should determine the fitness to plead issue. Counsel for the Director, Mr. McDermott, submits that this decision has been assigned to the Circuit Court. Counsel for the applicant, Mr. O’Higgins SC, disputes this. He submits that this construction would be anomalous since it would mean that if it were ultimately held that the applicant was fit to plead, he would have been deprived of the right to plead guilty in the District Court following a summary disposal of the matter. In the event of a guilty plea, it would be before a judge of the Circuit Court who would be free – in theory, at least – to sentence the applicant as if he had pleaded guilty to an indictable offence following a conventional return for trial.

6. Yet, on this hypothesis, since the District Court cannot determine whether the applicant was indeed fit to plead, this would mean that the applicant’s legal advisers would not be in a position to give him appropriate advice as to whether he should indeed plead guilty in the District Court, thereby accepting the Director’s offer, since his mental capacity to take such a step was, as a matter of law, in serious doubt.

7. This, accordingly, is the issue of statutory construction which presents itself for resolution at this juncture. It may be convenient, however, if I here observe that in an earlier stage of these proceedings I permitted the applicant to amend his pleadings to enable him to raise both constitutional and ECHR issues in the event that the Director’s argument regarding the construction of the 2006 Act was correct. The parties are agreed, however, that I should first proceed to determine the issue of construction, with the constitutional issue (and, indeed, if ultimately necessary from the applicant’s perspective, ECHR issues) arising only in the event that I ruled adversely to the applicant’s submissions on this issue and in respect of another issue concerning the validity of the return for trial.
The offence of which the applicant stands charged
8. Section 2 of the 1990 Act (as amended) provides:-

“The offence of indecent assault upon any male person and the offence of indecent assault upon any female person shall be known as sexual assault.

(2) A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5 years.”
9. It is plain that s.2 creates what might be described as a “pure” indictable offence, or to adopt the terminology used by McMahon J. in Director of Public Prosecutions v. Hunt [2011] IEHC 56, a non-hybrid indictable offence. In other words, such an offence always remains an indictable offence: see Director of Public Prosecutions v. GG. [2009] IESC 127. In this respect it is different from other types of offences which are triable either way.
10. Yet s. 13 of the Criminal Law Procedure Act 1967 allows a District Judge to accept a guilty plea in respect of a s. 2 offence provided that “the court is satisfied that [the accused] understands the nature of the offence and the facts alleged.” Section 13(2)(a) requires the consent of the prosecutor (i.e., the Director) for such summary disposal. Nevertheless, where there is such summary disposal, the maximum range of penalties is confined by that sub-section to that appropriate to a minor offence. Since, however, the District Court cannot ascertain whether the applicant understands the nature of the offence, the sub-section cannot presently be invoked, quite independently of the fact that there has been no indication by the applicant that he might wish to plead guilty.
Has the District Court jurisdiction to try this offence in a summary fashion?
11. Section 4(3)(a) of the 2006 Act deals with the circumstances in which the District Court can deal with a fitness to plead issue. It provides thus:-

“Where an accused person is before the District Court (in this section referred to as “the Court”) charged with a summary offence, or with an indictable offence which is being or is to be tried summarily, any question as to whether or not the accused is fit to be tried shall be determined by the Court.”
12. The applicant has not, of course, been charged with a summary offence. He was rather charged with an indictable offence which could only be tried summarily provided he pleaded guilty and provided also that the District Judge was satisfied that he understood the nature of the offence and the facts alleged. But these essential statutory pre-conditions to the exercise of that jurisdiction are not – as yet, at least – in place in the present case. It cannot therefore be said that the offence in question “is being or is to be tried summarily”, since without these pre-conditions being satisfied, the offence will never be tried summarily.
13. In the present case, the effect of the Director’s direction was that the applicant was to be tried on indictment if, for whatever reason, he did not plead guilty. Here the applicant did not plead guilty and the District Judge could not have been satisfied that he understood the nature of the offence. It follows, therefore, that in these circumstances s. 4(3)(a) cannot apply to the present case and the District Court had no jurisdiction to try the offence summarily having regard to the facts of the case as presented.
Does the Circuit Court have jurisdiction in this case?
14. If, then, s. 4(3)(a) does not apply , then, as we shall now see, s. 4(4)(a) must apply. It provides as follows:-

“(a) Where an accused person is before the Court charged with an offence other than an offence to which paragraph (a) of subsection (3) applies, any question as to whether that person is fit to be tried shall be determined by the court of trial to which the person would have been sent forward if he or she were fit to be tried and the Court shall send the person forward to that court for the purpose of determining that issue.”
15. As the applicant is a person charged with an offence “other than an offence to which [s.4(3)(a)] applies”, it follows that the mandatory provisions of s.4(4)(a) govern the case. This in turn means that that the District Court was obliged to return this applicant to the Circuit Court and it is that latter Court alone which has jurisdiction to hear and determine the fitness to plead issue.
16. It follows, therefore, that the District Judge was entirely correct in her decision to return the applicant for trial in the Circuit Court. Of course, in arriving at this view, I am conscious of the further argument which the applicant’s legal team proposes to advance at the next phase of this hearing, namely, that this construction of the 2006 Act gives rise to an unconstitutional lacuna in that the applicant has no real means of availing of the opportunity – should this prove advantageous to do so after the determination of the fitness to plead issue – of pleading guilty before the District Court and thereby securing the benefit of a lower range of maximum sentences which might by statute be imposed on him. The applicant thus contends that this lacuna amounts to a form of unconstitutional discrimination contrary to Article 40.1 as between those persons whose mental capacity is not in doubt on the one hand and those other persons (such as himself) whose respective fitness to plead requires to be judicially determined on the other.

17. I express no view at this juncture in relation to this question, save to observe that it will now arise for argument and adjudication in the light of this judgment.
Error on the face of the record
18. The applicant further contends that the two orders providing for a return for trial are defective and should be quashed. (I am using the term “return for trial” somewhat loosely here as a convenient shorthand. In strictness, the order is one which directs the sending forward of the applicant to the Circuit Court to enable the question of fitness to plead to be determined.) There are indeed two such orders, both of which contain errors. Thus, for example, the first such order does not specify the offence with which the applicant was charged and nor does it actually specify the precise venue where the issue of the applicant’s fitness to be tried is to be determined by the Circuit Court. The second order might be said unnecessarily to have duplicated the first. The order is moreover expressed to be signed by a “Judge of the District Court Service”, as distinct from the proper express expression, i.e., signed by “a judge of the District Court.”

19. It is hard to avoid the conclusion that neither order as so drafted is quite satisfactory. But does this mean that the order should be quashed on the basis that it contains an error on the face of the record? For the reasons I will now endeavour to set out, I cannot agree that it would be appropriate to take that step so far as the present case is concerned.

20. First, it must be recalled that the order in question is purely procedural in character in that it simply sends the applicant forward to the Circuit Court to enable the question of capacity to plead to be determined. In that respect, it is pertinent to note that the order does not, for example, finally adjudicate on legal rights, still less does it amount to a conviction or sentence. While this is not to suggest that the common law rules in relation to error on the face of the record do not apply to such orders, it is rather to say that the fact that the order does not record a conviction or impose a sentence is a factor to be taken into account in determining whether a court should quash a return for trial, or (as here) something akin to a return for trial: see, e.g., The State (Walsh) v. Maguire [1979] I.R. 372 at 385-386, per Henchy J. This is especially so when, as with the decision in Walsh, it is perfectly plain that the prosecution could (and, indeed, in all probability, would) seek to have the applicant again sent forward to the Circuit Court to enable the issue of fitness to plead to be determined were I now to quash these orders on the grounds of error on the face of the record.

21. Second, there can be no doubt as to what the District Judge both did and what she intended to do. All parties perfectly understood what had been proposed when she gave an ex tempore ruling sending the applicant forward to the Circuit Court for the fitness to plead issue to be determined. Thus, for example, in her grounding affidavit, Ms. Binchy, solicitor for the applicant, states that it was “confirmed by Ms. Farrell [the prosecuting solicitor] that the DPP wanted the case to be sent forward for the fitness to be tried issue to be determined.” No real disadvantage accrued to the applicant or his legal advisers by reasons of these errors. Even if, therefore, these errors can be justly characterised as being errors on the face of the record (as distinct from some form of harmless or insubstantial error), I do not think that any useful purpose would be served by quashing the orders in question given the absence of any real prejudice to the applicant: see, e.g., by analogy the comments of Finlay P. in The State (Coveney) v. Special Criminal Court [1982] I.L.R.M. 284, 289.

22. Third, and in any event, the applicant could properly have sought to have the orders rectified by the District Judge, whether by virtue of the slip rule (O. 12, r. 17 of the District Court Rules, 1997) or the inherent jurisdiction of the Court, once the nature of these errors became clear. Like all courts of record, the District Court has a jurisdiction to correct its own orders once it is clear that the order as drawn up does not correctly or accurately reflect the order which the court “actually intended and decided”: see Director of Public Prosecutions v. Judge Reilly [2008] IEHC 419, per Cooke J. Had such an application been made to District Judge Murphy and the defects in the orders drawn to her attention, there is little reason to suppose that she would not have exercised her jurisdiction to rectify and remedy them.
Conclusions
23. It follows, therefore, that, for the reasons stated, I would uphold the validity of the order made by District Judge Reilly. In the light of this construction of the 2006 Act, the constitutional issue also relied on by the applicant next falls to be determined. I will discuss with counsel how best to proceed with the next phase of the hearing.

Ogieriakhi v Minister for Justice and Equality (No.2)

[2014] IEHC 582

JUDGMENT of Mr. Justice Hogan delivered on the 22nd December 2014
1. This decision represents the latest stage of what has been a lengthy legal saga, the details of which will be set out at greater length in the course of this judgment. In essence, the plaintiff sues the State for damages by reason of its failure properly to transpose or apply Article 16(2) of the Free Movement Directive (Directive 2004/38/EC)(“the 2004 Directive”) in national law by reference to the Francovich principles (Case C-6/90 and Case C-9/90 Francovich v. Italian Republic [1991] E.C.R. I – 5357). As this date has assumed a particular importance so far as this claim is concerned, it should be noted at the outset that Article 40.1 of the 2004 Directive specified that Member States were required to approximate their laws and practices to comply with its requirements by 30th April 2006. The plaintiff also sues for damages for breach of his constitutional right to a good name as protected by Article 40.3.2 of the Constitution.

2. The plaintiff, Mr. Ogieriakhi, was originally a Nigerian national, but since 2012 he has been an Irish citizen through naturalisation. This case, however, concerns events which took place immediately before and after October 2007 when the plaintiff was dismissed from his employment as a postal sorter with An Post on the sole ground that he could not establish at the time to the satisfaction of his employer that he had the right to work in the State. It is important to state at the outset that the plaintiff was dismissed only by reason of his supposed lack of legal status and it was accepted that he was otherwise a diligent employee.

3. The plaintiff claimed that he had acquired the status of permanent resident by virtue of his marriage to a Ms. Georges, a French national, who was employed here (save for relatively short intervals) between the years 1999 to 2004. The plaintiff had himself originally arrived in Ireland in May 1998 whereupon he sought asylum. He married Ms. Laetitia Georges in May 1999 and he then subsequently withdrew the asylum application. He was given a residence permit by the Minister for Justice on 11th October, 1999.

4. That marriage split up at some stage in late 2001 or by early 2002 at the latest. A few months thereafter Mr.Ogieriakhi left the accommodation in which he had previously been living with Ms. Georges in order to make a new life with an Irish national, Ms. Catherine Madden. Ms. Georges and Mr.Ogieriakhi divorced in January, 2009 and Mr.Ogieriakhi and Ms. Madden married later that year in June, 2009. Mr. Ogieriakhi and Ms. Madden have a daughter who was born in 2003.
Article 16 of the 2004 Directive and the right of permanent residence
5. Article 16(1) of the 2004 Directive provides:

“Union citizens who have resided legally for a continuous period of five years in the host Member States shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.”
6. Article 16(2) adds that:
“Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.”
7. Article 16(4) further provides that:
“Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period of exceeding two consecutive years.”
8. The 2004 Directive came into force on 30th April, 2006. It was transposed into Irish law by the provisions of the European Communities (Free Movement of Persons)(No.2) Regulations 2006 (S.I. No. 656 of 2006), which came into force on 1st January 2007. If, therefore, Mr. Ogieriakhi’s residence within the State between 1999 and 2004 satisfies the requirements of the Directive, it follows that he would have been entitled to permanent residence within the State as and from that date.
9. In these present proceedings the plaintiff now sues the State in a Francovich-style action for damages claiming that the State failed properly to transpose the provisions of Directive 2004/38/EC (“the 2004 Directive”) into domestic law or else to apply the Directive’s provisions in a manner compatible with EU law. It is accepted that the plaintiff can only succeed in such a claim if it can be shown that Ireland failed properly to transpose or to apply the relevant provisions of Union law; that such a breach of Union law was a sufficiently serious one and that he or she suffered loss as a result.

10. The proceedings first came before me in early 2013. I took the view that as the plaintiff could not succeed unless he could show that he, in fact, had an entitlement to permanent residence by virtue of Article 16(2) and, specifically, that his five years pre-2006 residency here was by virtue of EU law. I accordingly decided to refer three separate questions to the Court of Justice pursuant to Article 267 TFEU: see Ogieriakhi v. Minister for Justice and Equality [2013] IEHC 133.

11. By decision dated 10th July 2014 the Court of Justice ultimately ruled in the plaintiff’s favour so far as the proper interpretation of Article 16(2) of the 2004 Directive is concerned: see C-244/13 Ogieriakhi [2014] ECR I-2068. As that Court stated in its concluding summary of its decision:

“Article 16(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that a third-country national who, during a continuous period of five years before the transposition date for that directive, has resided in a Member State as the spouse of a Union citizen working in that Member State, must be regarded as having acquired a right of permanent residence under that provision, even though, during that period, the spouses decided to separate and commenced residing with other partners, and the home occupied by that national was no longer provided or made available by his spouse with Union citizenship.”
12. In the wake of that decision, it cannot be doubted but that the State failed properly to apply Union law insofar as Mr. Ogieriakhi was wrongly refused residency on the basis that such residency had concluded prior to 30 April 2006 and, indeed, this is no longer disputed by the defendants. The effect of the decision of the Court of Justice can be summarised by saying that as the plaintiff was previously married to an EU national for the period of five years in respect of which she had exercised her free movement rights in this State, he then became entitled to permanent residency in this State. Before considering the legal issues which now arise so far as this action for damages is concerned, it is necessary first to resume the narrative to recount events which took place between 2004 and 2011.
The events between 2004 and 2011
13. On 11th September, 2004, Mr.Ogierakhi presented himself to the Office of the Garda National Immigration Bureau for the purpose of having his resident’s permit renewed. On this occasion he was informed that Ms. Georges should attend in person at the office of the Bureau for the purpose of considering whether or not there was continuing compliance with the criteria laid down with regard to her erstwhile spouse’s residence in this jurisdiction. Mr. Ogierakhi replied in correspondence pointing out that he could not arrange for Ms. Georges to come to the Garda National Immigration Bureau for this purpose since they had agreed to live apart. This matter was then referred by the Gardaí to the Minister and Mr. Ogierakhi’s application was refused on 3rd November, 2004. The Minister refused Mr. Ogierakhi’s application because it would have been necessary to show in accordance with Article 10 of the 1968 Regulation that there was a tenancy agreement rent book in the name of either the applicant or his EU national spouse and details as would identify a current contract of employment on the part of Ms.Georges.

14. This decision was subsequently successfully challenged by Mr.Ogierakhi in judicial review proceedings. In a decision of this Court delivered on 11th March, 2005, MacMenamin J. quashed the decision on the basis that the Minister had had no regard to information which had subsequently come to light to the effect that Ms. Georges was still in employment.

15. On this point MacMenamin J. stated:-

“Such investigations as have been carried out tend to indicate that the applicant’s spouse has in fact continuing connections with this jurisdiction, has worked here within the last year, has resided here and has availed of her rights as an EU citizen to draw social welfare here. In my view this information is relevant to a consideration of the applicant’s status. As is it plain such information has been adduced with a matter which was within the procurement of the respondent or other servants of the state, at the very minimum it would appear that such material would and should have a significant effect on the outcome of the decision to be made. I am satisfied that the absence of such information in the previous decision created a situation where there is an absence of fair procedures.”
16. In the wake of that decision of this Court the Minister then made a further decision on 13th April 2005 rejecting the plaintiff’s claim for residency. The Minister held that in order for Mr. Ogieriakhi to qualify for residency under Article 10 of Regulation 1612/68 (EEC), it was necessary for him to demonstrate that his EU national spouse was currently exercising her EU Treaty rights by working or residing in the State. The Minister’s inquiries established that Ms. Georges last resided in Ireland in December 2004 and thereafter had returned to Paris to take up employment. That decision was never challenged by Mr. Ogieriakhi.
17. It should also be recorded at this juncture that MacMenamin J. subsequently delivered a further judgment on 9th May 2007 in which he rejected a Francovich-style claim for damages for breach of EU law in respect of the decision of 3rd November 2004. This claim was rejected by MacMenamin J. on the grounds that:

“There is no evidence here of a manifest or grave disregarding on the limits of the exercise of the discretionary power vested in the State. This Court held, simply, that the determination was ultra vires. There was no finding of bad faith, malice or spite. There is no evidence either that the State engaged in a breach of Community law in which it persisted despite the existence of a judgment establishing the infringement or by way of preliminary ruling or settled case law.”
18. MacMenamin J. also rejected a claim for damages for breach of domestic law. Relying on the Supreme Court’s decision in Glencar Explorations plc v. Mayo County Council (No.2) [2002] 1 IR 84, he held that there was no evidence of the commission of a recognised tort such as negligence or breach of statutory duty.
19. It should be said, however, that the present claim for damages under the Francovich doctrine relates exclusively to events which post-dated the decision of May 2007 and in the entirely new legal context where Article 16(2) of the 2004 Directive was now in force. The most significant change effected by the 2004 Directive is that it provided for a right of permanent residence for a family member of an EU citizen following a continuous period of residence within the Member State in question for a five year period.

20. In the meantime Mr. Ogieriakhi had commenced working as a postal sorter with An Post on 12th November 2001 at the Dublin Mails centre. He was originally working on a 21 hour contract as an auxiliary postal sorter, but this was subsequently upgraded to a 48 hour contract on 13th February 2006 as a full-time postal sorter.

21. During this period Mr. Ogieriakhi was pursuing a course of legal studies. I accept the evidence from Mr. Seamus Thompson, human resources manager with An Post, that the documentary records from this period show Mr. Ogieriakhi applied for and was informally granted permission to revert to his prior status as an auxiliary postal worker at some stage in late September/early October 2007.

22. Some months earlier in March 2007 Mr. Ogieriakhi had applied to the Minister for permanent residence under the provisions of Article 16 of the 2004 Directive. On the 19th September 2007, Mr. Ogieriakhi was informed by the Minister that the application for residency was incomplete and could not be considered. It is common case that at that time the Minister interpreted the 2004 Directive as granting a right of permanent residence on the basis of a continuous five year period up to and including the 30th April 2006, but not in respect of a five year period which had expired prior to that date. In essence, therefore, Mr. Ogieriakhi was refused residency because he could not demonstrate such a period of residence. The letter refusing residency also threatened Mr. Ogieriakhi with deportation proceedings.

23. Mr. Ogieriakhi then challenged the decision refusing residency in judicial review proceedings (2007 No. 1232 JR) which he commenced on 26th September 2007. In those proceedings Mr. Ogieriakhi contended that he was entitled to remain in the State on the basis that he had acquired a right of permanent residence under Article 16 of the 2004 Directive. Those proceedings were heard by this Court on 25th January 2008. In an ex tempore decision delivered on that day Charleton J. held that the 2006 Directive did not have retroactive effect so as to apply to a continuous period of residence which ended prior to 30th April 2006. No appeal was taken at the time against that decision.

24. In the meantime things had taken a turn for the worse so far as the plaintiff’s employment with An Post was concerned. An article in a Sunday newspaper had highlighted the fact that he had been threatened with deportation on the ground that he lacked status in the State. It appears that this came to the attention of a trade union official who in turn reported the matter to senior management at An Post. The company then sought outside legal advice as to the legality of employing a non-EU national who did not have a valid work permit. That advice was to the effect that this would be illegal. It does not appear that any outside legal advice was sought by An Post as to whether Mr. Ogieriakhi had a right to work in the State by virtue of EU Treaty rights, although, of course, An Post also wrote at this point to the Chief State Solicitor’s Office to inquire regarding Mr. Ogieriakhi’s legal status.

25. According to the evidence of Mr. Thompson (which I accept), Mr. Ogieriakhi was then dismissed by An Post on the sole ground that he did not have a valid work permit and, as a result, he could not lawfully work for the company. He was first suspended by the company on 22nd October 2007 and he was told that he must produce a valid work permit at the next meeting on 24th October 2007. Mr. Ogieriakhi did not attend at that meeting and he was then dismissed. The letter of dismissal indicated that An Post would be prepared to re-employ him should he obtain a work permit at some stage in the future, subject to the existence of a suitable vacancy. That letter crossed with a letter from Mr. Ogieriakhi protesting that he had, in fact, acquired a right of residence here by virtue of EU law.

26. An Post’s solicitors then wrote to the EU Treaty Rights section of the Department of Justice, Equality and Law Reform inquiring regarding the plaintiff’s entitlement to work. A reply was received from the Chief State Solicitor on 8th November 2007 to the effect that as Mr. Ogieriakhi had voluntarily withdrawn his application for asylum, he had no such entitlement. The letter also referred to the fact that the plaintiff had applied for residency and had been refused, although judicial review of that decision was then pending. As a result of these inquiries An Post concluded that there was no legal basis upon which it could lawfully employ Mr. Ogieriakhi.

27. Mr. Ogieriakhi then commenced proceedings before the Employment Appeals Tribunal claiming that he had been unfairly dismissed. That hearing took place over two days on 4th April 2008 and 27th June 2008.

28. On the first day of the hearing, namely, 4th April 2008, the plaintiff received a message from the Department of Justice by telephone to the effect that he had just been given what is known as a Stamp 4 status by the Minister. The effect of this was that Mr. Ogieriakhi could then have lawfully worked in the State, with leave to remain here for a three year period. While this development was then brought to the attention of the Tribunal, it ruled that it would need to have formal written confirmation of this. A few days later on 8th April 2008 the Minister wrote to the plaintiff confirming that he was being granted Stamp 4 status.

29. At the resumed hearing on 27th June 2008 it is clear that counsel for An Post was asked by a member of the Tribunal as to whether the offer of re-employment was still available. This comment was obviously made against the backdrop of the most recent development regarding the Stamp 4. While there was some dispute about whether this exchange had happened, I accept the evidence of both Mr. Thompson and the company’s solicitor, Mr. Seamus Bowe, that they were both present during this hearings and that they both confirmed to the Tribunal through counsel that the offer remained open. I also accept their evidence to the effect that Mr. Ogieriakhi told the Tribunal that he was no longer interested in that offer because he had just established a company of his own.

30. As it happens, in April 2008 the plaintiff and Ms. Madden had incorporated a company known as Sahara Foods Ltd. Their intention was that this company would cater for the ethnic food market in the Kildare region. While the company started trading in July 2008 assisted by a loan from a local credit union, the company ultimately made a loss and ceased trading about one year later.

31. The Tribunal delivered its decision on 14th July 2008. It upheld the validity of the decision of An Post, saying that it could only judge matters as of the date of that dismissal on 22nd October 2007. As the plaintiff had not established a legal entitlement to work as of that date, it followed that the dismissal was lawful. An Post never formally invited Mr. Ogieriakhi to resume his employment after that date through correspondence in writing and nor did Mr. Ogieriakhi ever formally seek re-employment until February 2011.

32. It is clear that Mr. Ogieriakhi thereafter made many other attempts to secure gainful employment, but given the most unpromising state of the labour market during these very difficult years it is not surprising that these endeavours were unavailing. During this period Mr. Ogieriakhi resumed his legal studies and was financially dependent on his wife, Ms. Madden. The family’s financial circumstances became precarious in early 2010 when Ms. Madden was made redundant. I accept her evidence as to the financial difficulties which the dismissal of her husband from her employment has had on their family.

33. Mr. Ogieriakhi wrote again to An Post on 17th February 2011 drawing attention to the decision of the Court of Justice in C-162/09 Lassal (the significance of which decision I will next consider) which had been delivered a few months previously. He contended that this judgment demonstrated that the decision to terminate his contract was unlawful and he called upon the company to make appropriate reparation to him. The company responded on 25th February 2011 stating that as the decision of the Tribunal not been appealed, that decision still stood. The company stated that it would fully defend any new proceedings which were thereafter commenced.
The decision of the Court of Justice in Lassal in October 2010
34. The legal understanding as to whether Article 16 of the 2004 Directive had retroactive effect – and which had informed the decisions of both the Minister and the Irish courts – was, however, shown to be incorrect as a result of the important decision of the Court of Justice in Case C-162/09 Secretary of State for Work and Pensions v. Lassal [2010] ECR I-9217, a judgment delivered on 7th October 2010. In Lassal a French national had exercised free movement rights as a worker in the United Kingdom for a five year period between September, 1999 and February, 2005 in that she was either working or seeking work during that five year continuous period. She then left the UK for a ten month period but upon her return she was subsequently refused social security payments on the ground that she had no right of permanent residence there.

35. Following an Article 267 reference from the Court of Appeal from England and Wales, the Court of Justice held that continuous periods of residence of five years which were completed prior to the entry into force of the 2004 Directive on 30 April 2006 were required to be taken into account for the purposes of calculating the requisite periods of time spent in the host state for the purposes of Article 16(1). The Court further held that absences from the host state of less than two consecutive years did not affect that worker’s Article 16(1) entitlement to permanent residence assuming, of course, she had already satisfied the five years legal residence in that State.
The aftermath of Lassal and the present case
36. In the wake of the decision in Lassal the plaintiff then sought an extension of time within which to appeal the decision of Charleton J. to the Supreme Court. While that Court refused such an extension of time in an ex tempore decision delivered on 18th February 2011, the Court further noted that this was in a context where the Minister had agreed to review the application for residency in the wake of Lassal and where the plaintiff was free to pursue “such remedies (including those based on Community law) as he may wish.”

37. The Minister duly undertook a review of the application and sought the opinion of counsel on the legal points raised. Following the receipt of the opinion of counsel, the plaintiff was granted permanent residency in the State on November 7, 2011. To complete the picture, the Stamp 4 permission had been renewed for a further three years earlier that year. The plaintiff was granted Irish citizenship by naturalisation in 2010.
The Francovich claim
38. The present proceedings claiming Francovich damages were commenced in early 2012. So far as this claim for damages for breach of EU law is concerned, the Court of Justice itself has given useful guidance on this question when giving judgment in the preliminary reference in the present case. It will be recalled that the third question posed by me was whether the fact that this Court found it necessary to make a reference was itself a factor which I should take into account in assessing whether the breach of EU law was an obvious one. On that point the Court of Justice responded thus:

“In the light of the foregoing considerations, the answer to Question 3 is that the fact that, in relation to a claim for damages for infringement of EU law, a national court has found it necessary to seek a preliminary ruling on a question concerning the EU law at issue in the proceedings on the substance must not be considered a decisive factor in determining whether there was an obvious infringement of that law on the part of the Member State.”
39. The Court also conveniently re-stated the Francovich principles in the following terms
“First of all, it should be borne in mind that the principle of State liability for loss and damage caused to individuals as a result of infringements of EU law for which the State can be held responsible is inherent in the system of the Treaty (Francovich and Others, EU:C:1991:428, paragraph 35; Brasserie du pêcheur and Factortame, C-46/93 and C-48/93, EU:C:1996:79, paragraph 31; and British Telecommunications, C-392/93, EU:C:1996:131, paragraph 38).
Similarly, it should be recalled that the Court has also held that EU law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the infringement must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties (Brasserie du pêcheur and Factortame, EU:C:1996:79, paragraph 51).

As regards the second condition, after stating that the decisive test for finding that an infringement of EU law is sufficiently serious is whether the Member State concerned manifestly and gravely disregarded the limits of its discretion, the Court indicated the criteria that national courts — which have sole jurisdiction to find the facts in the main proceedings and to decide how to characterise the infringements of EU law at issue — may take into account, such as the degree of clarity and precision of the rule infringed (Brasserie du pêcheur and Factortame, EU:C:1996:79, paragraphs 55, 56 and 58).

40. It is these principles which I am now called upon to apply in the present case.
First condition: does Article 16(2) of the 2004 Directive confers rights on individuals?
41. As to the first condition, there really can be very little doubt. The very language of Article 16(2) of the 2004 Directive makes it clear that this provision was intended to confer rights on individuals. This is not only obvious from the context, structure and language of Article 16 itself, but it is, in any event, confirmed by the reasoning of the Court of Justice itself on the Article 267 reference which I made in this case:

“40. That interpretation is also consistent with the need not to construe Directive 2004/38 narrowly and not to deprive its provisions of their effectiveness. In that regard, it should be noted that, if Article 16(2) of the Directive were to be interpreted literally, a third-country national could be made vulnerable because of unilateral measures taken by his spouse, and that would be contrary to the spirit of that Directive, of which one of the objectives is precisely — according to recital 15 thereto — to offer legal protection to family members of citizens of the Union who reside in the host Member State, in order to enable them, in certain cases and subject to certain conditions, to retain their right of residence exclusively on a personal basis.”
42. It is thus plain that the right of residence under Article 16(2) is personal to the third-country national. The first condition is accordingly satisfied.
Second condition: whether the breach was sufficiently serious
43. The second question is whether the breach was sufficiently serious. I accept fully the evidence given by both Mr. Thompson and Mr. Bowe on behalf of An Post and by Mr. Aengus Casey (a Higher Executive Officer attached to the Residence Section of the Irish Naturalisation and Immigration Service of the Department of Justice and Equality) on behalf of the Minister that all decision-makers had acted honestly by reference to their understanding at the time of the requirements of the Directive. Yet it is still impossible to avoid the conclusion that, viewed objectively, the breach of Article 16(2) which took place in the present case was a very serious one with grave consequences for Mr. Ogieriakhi.

44. It is clear from the case-law that whereas the presence of malice and the absence of bona fides coupled with the existence of a breach of EU law will necessarily ground liability, the converse is not the case. At common law, a decision-maker will be liable for the tort of misfeasance in public office where he or she acted illegally and with malice: see, e.g., Pine Valley Developments Ltd. v. Minister for the Environment [1987] I.R. 23, 36-37, per Finlay C.J. The Court of Justice has, however, already held in Brasserie du Pêcheur (at para. 73 of the judgment) that a requirement that something akin to misfeasance must be shown before liability under the Francovich principles could be established would insufficiently protect EU law rights:

“Likewise, any condition that may be imposed by English law on State liability requiring proof of misfeasance in public office, such an abuse of power being inconceivable in the case of the legislature, is also such as in practice to make it impossible or extremely difficult to obtain effective reparation for loss or damage resulting from a breach of Community law where the breach is attributable to the national legislature.”
45. It is, moreover, clear from the leading domestic authority on Francovich liability that the question of the seriousness of the breach must be assessed objectively and the mere fact that the ministerial officials acted bona fide and, for example, endeavoured quickly under difficult circumstances to put together a scheme of compensation for farmers affected by the outbreak of serious animal disease could not excuse liability in damages for breach of Union law: see Maxwell v. Minister for Agriculture [1999] 2 IR 474, 484, per McCracken J.
46. In Maxwell a scheme of compensation which differentiated without any objective justification between producers who exported live steers and producers who sold animals directly to the factories for slaughter was held to constitute a breach of the non-discrimination provisions of Article 40(3) EC (now Article 40(2) TFEU). McCracken J. regarded this breach of European Union law as a very serious one.

47. As the Court of Justice confirmed in its judgment on the preliminary ruling in the present case, paragraphs 55, 56 and 58 of Brasserie du Pêcheur are of particular importance in any assessment of whether the breach of Union law was a sufficiently serious one:

“55. As to the second condition, as regards both Community liability under Article 215 and Member State liability for breaches of Community law, the decisive test for finding that a breach of Community law is sufficiently serious is whether the Member State or the Community institution concerned manifestly and gravely disregarded the limits on its discretion.
56 The factors which the competent court may take into consideration include the clarity and precision of the rule breached, the measure of discretion left by that rule to the national or Community authorities, whether the infringement and the damage caused was intentional or involuntary, whether any error of law was excusable or inexcusable, the fact that the position taken by a Community institution may have contributed towards the omission, and the adoption or retention of national measures or practices contrary to Community law.

57 On any view, a breach of Community law will clearly be sufficiently serious if it has persisted despite a judgment finding the infringement in question to be established or a preliminary ruling or settled case-law of the Court on the matter from which it is clear that the conduct in question constituted an infringement.

58 While, in the present cases, the Court cannot substitute its assessment for that of the national courts, which have sole jurisdiction to find the facts in the main proceedings and decide how to characterize the breaches of Community law at issue, it will be helpful to indicate a number of circumstances which the national courts might take into account.”

48. So far as the criteria of the clarity and precision of the rule breached and the measure of discretion left by that rule to the national or Community authorities, it has to be said that the terms of both Article 16(1) and Article 16(2) of the 2004 Directive are absolutely unambiguous and are both couched in unambiguous language (“..shall have the right of permanent residence…”…”shall also apply to family members who are not nationals of a Member State”). Assuming the conditions of Article 16(2) apply, Member States enjoy no discretion in the manner.
49. Nor can it be said that this error was objectively excusable. It is true that the matter was only ultimately clarified in Lassal. Even then a further reference from this Court to the Court of Justice was required before there could be absolute finality in respect of the present case given that Lassal concerned an EU national (Article 16(1)), whereas Mr. Ogieriakhi’s case as a non-EU national fell for consideration under Article 16(2). One might also here point to the fact that the plaintiff lost his pre-Lassal challenge in this Court in February 2008,

50. Nevertheless, the fact remains that the Minister adopted an interpretation of Article 16(2) which was always inherently unlikely to prevail as it was at odds with one of the key objectives of the 2004 Directive as explained by recitals 17, 18 and 19:

“(17) Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship. There is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the Host Member state in compliance with the conditions as laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.
(18) In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizens reside, the right of permanent residence, once obtained, should not be subject to any conditions.

(19) Certain advantages specific to Union citizens who are workers or self-employed persons and to their family members, which may allow these persons to acquire a right of permanent residence before they have resided five years in the Host Member state, should be maintained, as these constitute acquired rights, conferred by Commission Regulation (EEC) No.1251/70 29 June 1970 on the right of workers to remain in the territory of a Member State after having being employed in that State in Counsel Directive 75/34/EEC of 17th December 1974 concerning the rights of nationals of a Member State to remain in the territory of another Member State after having pursued therein a activity in a self-employed capacity.”

51. Quite apart from the fact that the language of the recitals (“A right of permanent residence…for all Union citizens and their family members who have resided in the host Member State….) is perfectly apt to capture past events, one might have expected that if pre-2006 residence was not to count for this purpose then this would have found expression if not in the substantive provisions of the 2004 Directive themselves, then at least in the recitals.
52. Besides, as the Court of Justice noted at para. 34 et seq. in Lassal if the pre-April 2006 residence could not be taken into account this would lead to some striking anomalies, depending on whether the residence started on, before or was completed by 30 April 2006. Given that the pre-existing legislative entitlements of free movers and their families to remain in the host Member State contained in provisions such as Article 10 and Article 11 of Regulation (EEC) No. 1612/68 were being repealed with effect from 30th April 2006 by virtue of Article 38 of the 2004 Directive, this was a further clear textual indication that the Union legislator assumed that pre-April 2006 residence would count for this purpose, as it can scarcely have been supposed that Union citizens who acquired rights of residence prior to April 2006 under the old regime were now to find that they had neither rights under the old regime (which had been repealed) or under the new regime. Any such conclusion would have led to an outright absurdity which would be entirely at odds with the nature and purpose of the 2004 Directive in general and Article 16 in particular.

53. One could also add that as recital 19 makes clear, the pre-acquired rights of certain workers and self-employed persons to permanent residence after a stay in the host Member State of less than five years which had been conferred by virtue of Commission Regulation (EEC) No.1251/70 and Directive 75/34/EEC are expressly preserved. Article 17(1) provides that this specific entitlement to residence after less than five years in these circumstances is “by way of derogation from Article 16.” If, however, Article 16 did not apply at all to pre-April 2006 events, one might well ask what the purpose of recital 19 was or why Article 17 was in this respect expressed to be by way of derogation from Article 16? There is here again further clear textual evidence that Article 16 contemplated that pre-April 2006 residence could count in any assessment of the five year residency period.

54. In arriving at this conclusion I do not overlook the fact that the Minister interpreted the 2004 Directive as including a five year period which pre-dated 30th April 2006, provided at least some of that period crossed over the 30th April 2006 date. On this interpretation, residence which commenced in June 2001 and concluded in June 2006 would, for example, have been acceptable, whereas residence which commenced in March 2001 and concluded in March 2006 would not. But there is simply nothing at all in either the text, the recitals or the stated purposes of the 2004 Directive which warrants that particular interpretation. Article 16 was either capable of embracing pre-April 2006 residency or it was not. If it was, there was nothing in the Directive to suggest that it was critical that the five year period should not have concluded before 30th April 2006. If it was not so capable of including pre-April 2006 residency, then there was no basis at all for the Minister’s approach. In any event, if the Union legislator had intended to bring about such striking anomalies between broadly similar categories of otherwise eligible persons so that, for example, there was a requirement that any pre-April 2006 residency which was to be counted for the purposes of the five year period should not have concluded prior to 30 April 2006, one would have expected that this would have been expressly stated.

55. Nor do I overlook the fact that Article 16 is “one of the novelties of Directive 2004/38”: Guild, Peers, Tomkin, The EU Citizenship Directive – A Commenatary (Oxford, 2014) at 177. It is accordingly true that Article 16 introduced a general right to permanent residency for this first time, supplanting the conditional right of residence of workers and self-employed (and their families) which had previously been recognised in earlier EU legislative texts. When measured against the objects of EU free movement principles in general and the 2004 Directive in particular, it would, however, make little sense that only-2006 permanent residency should be recognised for this purpose. This was the very point made by the Court of Justice in Lassal.

56. For completeness, I should add that it is clear from the answer given by the Court of Justice in respect of the third question posed on the reference that the fact that I considered it appropriate to make an Article 267 reference cannot in itself be regarded as a significant issue in any assessment as to whether, viewed objectively, the breach of Union law was a serious one.

57. It follows, therefore, that for the reasons stated, the second condition is accordingly satisfied.
Third condition: whether there is a causal link between the breach and the damage suffered
58. Just as with the first condition, there is little doubt but that there is a causal link between the breach of EU law and the damage suffered by the plaintiff. Mr. Ogieriakhi was dismissed from his employment simply because it could not be established that he had the right to work or reside here. Yet the reason why his entitlement to reside here was not acknowledged rested entirely on the Minister’s pre-Lassal interpretation of the scope of application of Article 16(2) of the 2004 Directive ratione temporis, i.e., that periods of five year residency completed prior to 30 April 2006 simply did not count for this purpose.

59. It follows, accordingly, that there is such a direct causal link between the breach of Article 16(2) of the 2004 Directive and the loss and damage suffered by Mr. Ogieriakhi.
Conclusions on the liability issue
60. It follows, therefore, that as Mr. Ogieriakhi has satisfied all three conditions prescribed in the Francovich test, he is entitled to damages for breach of Union law. I now turn to a consideration of the quantum of damages.

61. The plaintiff’s claim to damages really raises three issues which we can now consider in turn. First, there is the extent of the losses suffered by him as a result of his dismissal from employment. Second, there is the extent of his duty to mitigate his loss. Third, there is the question of general damages for breach of his constitutional rights.
The losses suffered by Mr. Ogieriakhi as a result of his dismissal from employment
62. I first turn to consider the extent of the losses suffered by Mr. Ogieriakhi. As I have already indicated, the evidence establishes that at the time of his dismissal Mr. Ogieriakhi was employed as an auxiliary postal sorter with a basic salary of €362 per week or €18,724 per year. In addition, however, there was the potential of earning overtime at the rate of €15 per hour.

63. In 2007 there were significant opportunities for overtime, with some auxiliary employees working as much as 16 extra hours. I fully accept the evidence of Mr. Thompson to the effect that the opportunities for overtime were contingent on the approval of management and, in any event, were dependent on a “turns” system, so that individual employees could not, as it were, appropriate all the available overtime to themselves as opportunities had to be shared among the workforce. Furthermore, Mr. Thompson explained that given the economic downturn since 2008 and the simultaneous increasing use of electronic mail by customers, An Post has had to cut the size of his workforce significantly in recent years. All of this means that the opportunities for overtime declined significantly over this period.

64. While it is naturally always difficult to say what would have happened had certain events not occurred, my own assessment is that Mr. Ogieriakhi would have remained as an auxiliary postal worker and that he would have worked an average of an additional 20 hours per month overtime during this period. I do not think that, but for the dismissal, the plaintiff would have left his job. I appreciate that after his dismissal the plaintiff sought to establish his own company and shop, but I do not think that this would have occurred were it not for the fact that he had been dismissed from his employment with An Post. In expressing this view I have not overlooked the fact that Mr. Ogieriakhi indicated to the Tribunal in June 2008 that he did not want his job back. But those comments were made after his dismissal and one can understand Mr. Ogieriakhi’s sense of disillusionment after those events and the attitude he then adopted must be understood in that light.

65. It must be accepted that this is something of a rough and ready estimate. While I think that Mr. Ogieriakhi would have wished to have worked more overtime and possibly even return to his earlier status as a full-time postal worker, I do not think that the very difficult financial circumstances prevailing in An Post during this period would have allowed for this possibility. On this basis, therefore, Mr. Ogieriakhi’s gross loss (before tax) would have been €22,324 per year.

66. A further consideration is the number of years in respect of which I should allow Mr. Ogieriakhi to claim. This is partly tied to questions of the duty to mitigate loss, which I will next consider. While it would be wrong to permit any plaintiff to claim on an open-ended basis no matter how wronged they have been, one cannot ignore the fact that (save for odd jobs) this plaintiff has been left more or less unemployed since his dismissal. I think that in the circumstances I should allow him to claim for six years from 24 October 2007 until 23 October 2013, i.e., the maximum period tacitly permitted by the Statute of Limitations.

67. It follows, therefore, that, subject to the duty to mitigate (which I will next consider), the plaintiff’s gross loss over the six year period is €133,944 (i.e., 6 x €22,324).
The plaintiff’s duty to mitigate
68. The plaintiff was under a clear duty to mitigate his loss and this included taking such appropriate steps either to be restored to his original employment with An Post or else to find alternative employment. In my view, measured by reference to a context where the plaintiff now claims damages by reason of his dismissal from his position with An Post, it was objectively unreasonable of him not to avail of the offer from An Post made at the resumed Tribunal hearing to re-engage him once an appropriate vacancy occurred. Had he done so, I imagine that the plaintiff would have been re-engaged within three months after that date, so that he would have still lost the entirety of the equivalent of one year’s work, i.e., from October 2007 to October 2008.

69. But what of the situation thereafter? While Mr. Ogieriakhi was at fault in not pursuing that offer, An Post were also objectively at fault in failing formally to take any appropriate steps to this end. It is fair to acknowledge (as I have already found) that they made such an offer through counsel before the Tribunal, but it really should have been accompanied by a subsequent formal offer in writing. Without such a written offer, the plaintiff could not properly assess the terms on which he might have been re-engaged and, if so, when.

70. The failure to take reasonable steps to mitigate loss can amount to contributory negligence for the purposes of s. 34 of the Civil Liability Act 1961: see McCord v. Electricity Supply Board [1980] I.L.R.M. 153, 163, per Henchy J. Given that there was fault on both sides, I will measure Mr. Ogieriakhi’s contributory negligence by reason of the failure to mitigate at 50% for the period from October 2008 to February 2011.

71. The position changed again in February 2011 when Mr. Ogieriakhi sought re-instatement from An Post in the wake of the decision of the Court of Justice in Lassal . By this stage the invalidity of the 2007 dismissal as amounting to a breach of Union law was manifest and the failure of the defendants at this point to take any steps to redress this wrong even in the wake of Lassal cannot be objectively defended. As that failure amounted to something akin to a fresh wrong to Mr. Ogieriakhi, it would be inappropriate to apply the reduction based on contributory negligence from that point onwards until the close of the claim in October 2013.

72. I will accordingly assess damages for loss of income as follows:

October 2007 – October 2008: €22,324 (100%)

October 2008 – October 2009 €11,162 (50%)

October 2009 – October 2010 €11,162 (50%)

October 2010 – February 2011 € 3,716 (50%)

February 2011 – October 2011 €14,893 (100%)

October 2011 – October 2012 €22,324 (100%)

October 2012 – October 2013 €22,324 (100%)

Total: €107, 905

73. That figure is, of course, subject to the payment of appropriate income tax and fiscal charges having regard, inter alia, to the provisions of ss. 123 and 201 of the Taxes Consolidation Act 1997 (as amended) and the guidance given on this issue in cases such as Sullivan v. Southern Health Board [1997] 3 I.R. 123 and Nerney v. Thomas Crosbie Holdings Ltd. [2013] IEHC 127.There will be liberty to apply in relation to this matter if required.
General damages for breach of his constitutional rights
74. So far as the claim for general damages is concerned, I entirely accept the evidence of Mr. Ogieriakhi and that of his wife, Ms. Madden, that his dismissal from employment had serious financial and reputational consequences for him and his family. It brought about serious financial strain. It is clear, however, that damages for inconvenience, upset and distress falling short of a cognisable psychiatric injury are not recoverable in an action for negligence: see, e.g., Devlin v. National Maternity Hospital [2007] IESC 50, [2008] 2 IR 222, Larkin v. Dublin City Council [2007] IEHC 416, [2008] 1 IR 391 and Walter v. Crossan [2014] IEHC 377.

75. Independently of any claim in tort, however, the plaintiff nevertheless also sues for damages for breaches of his constitutional rights to a good name and to his property rights as protected by Article 40.3.2 of the Constitution by reason of the circumstances in which he came to be dismissed. So far as general damages are concerned, this, indeed, is his principal claim. This appears to be the first case in which this Court has been required to determine whether a person who has been dismissed in this or similar fashion can sue for breach of his constitutional right to a good name by reason of the injury to his reputation resulting in that dismissal.

76. There is no doubt but dismissal from employment brought about by operation of law clearly engages the protection of the property rights protected by Article 40.3.2: see Cox v. Ireland [1992] 2 I.R. 503, 522, per Finlay C.J.. In Cox, the plaintiff was dismissed from his employment by reason of the operation of a statutory provision which was later found to be unconstitutional.

77. Article 40.3.2 provides:

“The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.”
78. Moreover, the Supreme Court has stressed the importance of the Courts upholding the “solemn guarantee” contained in Article 40.3.2 so that adequate protection is afforded to the person who is unjustly removed from office. As Henchy J. put it in Garvey v. Ireland [1981] I.R. 75, 101:
“That guarantee would be abandoned and abrogated if, in every case of dismissal from an office such as this, the possibility of error, unfairness and injustice were to be compounded by silence and then rendered it immune from judicial inquiry by the concept of executive immunity. An office such as this, which provides its holder with his livelihood, and in which he may reasonably hope to qualify for honourable retirement, is such an integral part of what goes to make up his dignity and freedom that his removal from it should have attached to it at least the justification of a stated and examinable reason.”
79. These words were admittedly uttered in the context of whether the Government were obliged to give reasons for the removal from office of a statutory officer but they might nevertheless be thought to have a peculiar resonance for the present case.
80. It is true that two subsequent judgments of Henchy J. have clarified the extent of the State’s duty under Article 40.3.2. In Pine Valley Developments the plaintiffs had paid an enhanced price for lands with the benefit of a planning permission, which permission was later held to be ultra vires. Henchy J. stressed that in those circumstances the plaintiffs could either have sued the vendor for breach of the latter’s covenant for title or brought an action for unjust enrichment. In those circumstances Henchy J. considered that “it may therefore be said that they have failed to prove that an injustice has been done to them for the purposes of Article 40.3.2”: see [1987] I.R. 23, 42. In effect, therefore, Henchy J. held that there had been no breach of the State’s duty under Article 40.3.2 because the ordinary law of vendor and purchaser and together with the law of unjust enrichment provided the plaintiff with an effective remedy and an adequate means of redress.

81. A similar approach was taken by Henchy J. in Hanrahan v. Merck, Sharpe & Dohme Ltd. [1988] I.L.R.M. 623, 636 where he said that a plaintiff suing for breach of his constitutional rights must normally first invoke his rights at common law or under statute, save where these rights were “basically ineffective to protect his constitutional rights.”

82. Can it be therefore said that the ordinary law affords the plaintiff an effective remedy such that no “injustice” has been done to him for the purposes of Article 40.3.2 in respect of the protection of either his property rights or his good name in the manner contemplated by Henchy J. in both Pine Valley and Hanrahan?

83. In the case of his property rights, it may be said that the Francovich remedy provides the plaintiff with an effective and adequate protection of the property rights which are associated with his employment and the right to earn a living. In other words, the award of €107,905 may be taken to represent an adequate and just compensation for the wrongful interference with his property rights in respect of the loss of income which he might fairly have anticipated had he not been dismissed.
Article 40.3.2 and the protection of the right to a good name
84. I take a different view, however, in respect of the protection of the plaintiff’s constitutional right to a good name. The common law has traditionally declined to award damages for loss of reputation following dismissal from employment. The classic example is Addis v. Gramophone Co. Ltd. [1909] AC 488, a case where the House of Lords held (or, at least, appears to have held) that damages are not recoverable in contract for the manner in which an employee has been dismissed from his employment. In that case the plaintiff had been summarily dismissed from his employment in a humiliating manner which had seriously affected his reputation and standing.

85. It is true that the precise ratio of the decision is not easy to decipher, given the sometimes Delphic statements found in the majority judgments, with Lord Collins alone dissenting. As Lord Steyn pointed out in Johnson v. Unisys Ltd. [2003] 1 AC 518, 526-527 the headnote to the [1909] Appeal Case may well be incorrect insofar as it states that the a plaintiff could never recover such damages for loss of reputation in an action for contract of contract, as only the Lord Loreburn L.C. clearly stated this proposition.

86. In some ways, none of this really matters, because this, one way or the other, Addis has cast a long shadow over this branch of the law of contract. Lord Loreburn’s analysis has been generally understood (whether correctly or otherwise) to reflect the prevailing view of the common law as laid down in that case. As a matter of principle, it seems hard to think that an ex ante exclusion of a claim for damages of this kind could be justified as a matter of ordinary contract law, given that as I observed in Walter v. Crossan [2014] IEHC 377 there are many examples strewn around other areas of the law of contract where damages for disappointment and inconvenience can be recovered:

“There is no doubt but that damages for distress and inconvenience of this kind are at least in principle recoverable in an action for breach of contract. Thus, damages can be recovered for upset and disappointment arising from an unsatisfactory holiday: (Jarvis v. Swan Tours Ltd. [1973] Q.B. 223) or where a wedding party are wrongly denied access to food and drinks which a public house had agreed to supply for a post-wedding reception (Dinnegan v. Ryan [2002] IEHC 55) or where a worker is wrongfully denied the early retirement he had been promised and for which he had made arrangements (Browne v. Iarnród Eireann (No.2) [2014] IEHC 117). Damages for inconvenience can also be awarded for breach of contract in respect of the construction of a defective dwelling: see, e.g., Johnson v. Longleat Properties Ltd. [1976-77] I.L.R.M. 93, Quinn v. Quality Homes Ltd. [1976-77] I.L.R.M. 314, Leahy v. Rawson [2004] 3 I.R. 1 and Mitchell v. Mulvey Developments Ltd. [2014] IEHC 37.”
87. To that list one might also add the various cases (such as, e.g., Clayton v. Oliver [1930] A.C. 209) where damages can be awarded for loss of reputation where “the main purpose of the contract was advertising or publicity”: McDermott, Contract Law (Dublin, 2001) at 1132-1133.
88. A far more detailed analysis of the fallacies and muddled thinking which underpin the reasoning in Addis is to be found in Lord Steyn’s masterly dissenting judgment in Johnson v. Unisys Ltd [2003] 1 AC 518. It may be correct to say – as Lord Atkinson did in Addis – that “damages for breach of contract were in the nature of compensation, not punishment.” But this does not mean that if the plaintiff suffers reputational damage in the manner of his wrongful dismissal that he or she is not entitled to be compensated for this loss, even if the law of contract does not allow for something in the nature of exemplary damages by way of punishment in respect of any egregious conduct on the part of any party who broke the contract.

89. While some inroads into the rule in Addis were made in Malik v. Bank of Credit and Commerce International SA [1998] AC 20 (where the plaintiffs were allowed to recover “stigma” damages by reason of the fact that their employer had engaged in fraudulent banking practices, so making their re-employment more difficult), a majority of the House of Lords declined to take the opportunity in Johnson to overrule the earlier decision in Addis, even though a member of that majority, Lord Millett, also acknowledged that the rule was “not easy to defend and may no longer be the law.” Instead the justification offered by the majority was that overruling Addis would be tantamount to creating by judicial decision a parallel system of unfair dismissal legislation and that, given parliamentary intervention in this area, it would be inappropriate for the courts to take such a step.

90. So far as our courts are concerned, the question of whether damages could be awarded in an action in contract for breach of reputation was left over by Gilligan J. in Carey v. Independent Newspapers (Ireland) Ltd. [2004] 3 I.R. 52 (although his judgment contains an exceptionally helpful and insightful summary of the law in this area) and by Laffoy J. in Nerney v. Thomas Crosbie Holdings Ltd. [2013] IEHC 127. The Addis principle was, however, applied by McWilliam J. in Garvey v. Ireland (No.2) [1979] I.L.R.M. 266.

91. In that case the Garda Commissioner had been summarily dismissed by the Government. No reasons were given for that decision. As we have already seen, the Supreme Court held in Garvey (No.1) that this dismissal was invalid and the Court considered that the general fairness of procedure and the protection of his constitutional rights required the giving of reasons. After that decision the matter was remitted to the High Court for the assessment of damages.

92. At that point the plaintiff claimed damages for loss of job satisfaction, invasion of privacy “due to the public interest in his removal from office, injury to his health and general distress aggravated by the effect the events had upon his family.” McWilliam J. rejected these claims, endorsing the principle in Addis ([1979] I.L.R.M. 266, 268):

“I accept the decision in this case. Accordingly, unless some injury was occasioned by the plaintiff as a result of the wrongful removal from office of the plaintiff which could reasonably have been foreseen by the defendants, I am of the opinion that he is not entitled to any general damages under this heading.”
93. However, McWilliam J. went on to award the plaintiff what even then was a relatively small amount of damages (IR£500) to reflect the arbitrary and oppressive conduct of the Government. The judge explained this relatively small sum by saying, however, that a “similar injury would, to a large extent, have been sustained by the plaintiff had he been lawfully removed from office.”
94. There are a number of features of Garvey (No.2) which invite comment. First, the summary and very public removal of an office-holder in this fashion is something which will inevitably cause the holder immense personal distress, given its humiliating circumstances. Contrary to what McWilliam J. seemed to imply, it is very hard to see that this type of injury is not foreseeable. Second, the decision in Addis did not turn on questions of foreseeability, as such, but rather that the additional injury caused to the plaintiff’s reputation by reason of the circumstances of his dismissal was simply not recoverable in an action for damages for breach of contract – as distinct from tort – precisely because (as the House of Lords saw it) of the nature of the cause of action in contract. Third, it is notable that McWilliam J. awarded damages (albeit reduced) for arbitrary conduct on the part of the Government, even though this was precisely the kind of damages for breach of contract which Addis seems to exclude. Fourth, McWilliam J. reduced the damages because he thought that the plaintiff would have suffered a similar injury had he in fact been lawfully removed from office. But this, with respect, surely begs the question as to whether the plaintiff could lawfully have been removed had due process been properly observed. In any event, even if this were so, the extent of the public humiliation suffered by the plaintiff would surely have been less had he been removed after due process rather than being removed in the arbitrary fashion which in fact occurred: this, after all, had been a key feature of the reasoning of Henchy J. in Garvey (No.1).

95. One other important issue which did not feature at all in Garvey (No.2) – even though, as we have seen, it was a critical element of the judgment of Henchy J. in Garvey (No.1) – was the protection of the plaintiff’s good name in Article 40.3.2, as informed by the Preamble’s commitment to the objective of securing the dignity of the individual. This is, however, a central feature of the instant case which presents this question, apparently for the first time.

96. It may be immediately observed that a rule which provides that damages for loss of reputation are excluded from recovery would be prima facie incompatible with express terms of the guarantee imposed on the State by Article 40.3.2 to protect the good name of every citizen, as informed by what Henchy J. described in Garvey (No.1) ([1981] I.R. 75, 99) as the “broad motivating and purposive considerations” of the Preamble’s commitment to human dignity. After all, employment is not just simply a means of earning a living. Employment gives dignity to what otherwise would be for many a soulless existence and our occupation may be said to be one of the key defining features of our life. The twin constitutional guarantees of dignity and good name would accordingly be purely hollow and emptied of any substance if the law did not provide an adequate remedy to compensate for loss of reputation in this kind of case and the affront to the dignity of the individual which such a humiliating unlawful removal from office entails. After all, as O’Byrne J. said in Buckley v. Attorney General [1950] I.R. 67, 81, it is the duty of the courts to ensure that these constitutional guarantees are given “life and reality.”

97. So far as the present case is concerned, it is therefore sufficient to say that as the Addis rule would be “basically ineffective” (to use the words of Henchy J. in Hanrahan) to protect the constitutional right to a good name in the circumstances of this case, the plaintiff is accordingly entitled to sue directly for damages for breach of his constitutional rights. This is particularly so given the highly unusual feature of this claim where the dismissal of the plaintiff from his employment was brought about not by reason of his conduct or the financial situation of the employer, but rather because of the application of immigration rules in a manner which has been subsequently found by the Court of Justice to be contrary to the requirements of EU law. It is unnecessary in these circumstances to examine the extent to which the rule in Addis might have to suffer modification by reason of Article 40.3.2 so far as the generality of employment disputes governed by private law are concerned.

98. Nor could it be said that an action for the tort of defamation – which is the principal remedy provided by law for the vindication of the constitutional right to a good name – would have afforded adequate protection for this right, at least in the very special circumstances of the present case. As the employment cases themselves tacitly recognise, the vindication of the employee’s right to a good name following dismissal must normally come through either the mechanism of contract law or not at all. This is because defamatory words or conduct will not normally accompany the act of dismissal and, even if they do, the uttering of such words will generally be protected by privilege in the manner now contemplated by s. 18 of the Defamation Act 2009.

99. It is, moreover, the very of act of dismissal which often sends the signal to future employers that the employee is not fit to be re-hired. The gist of the damage to the plaintiff’s good name was the immediate and unlawful termination of his contract of employment with An Post. This was not capable of being remedied either by the tort of defamation (for the reasons just stated) or for breach of contract (by reason of the rule in Addis). It might have been capable of being remedied by means of proceedings under the Unfair Dismissal Acts 1977 to 2007, but, as we have seen, the Employment Appeals Tribunal rejected the claim that this dismissal was unfair.

100. For all of these reasons, therefore, the existing law did not adequately vindicate the plaintiff’s constitutional right to a good name, at least in the unusual and special circumstances of the present case.

101. What injury and loss to reputation did the plaintiff then suffer? There is no doubt but that An Post sought to minimise the loss and disruption which the plaintiff suffered. Nor could it be said that An Post acted in an arbitrary or high-handed fashion. Yet the plaintiff nonetheless suffered a grievous injustice: he was summarily dismissed over his protests that he had a legal entitlement to work here in circumstances that must have been personally humiliating and undignified. To make matters worse, his dismissal was totally unrelated to his work or performance or the necessity for the company to re-structure its business. The summary nature of the dismissal created the impression that he was not lawfully entitled to work and perhaps worse. The present case is quite different from a case such as Nerney where Laffoy J. found on the facts of that case that the sudden termination of the plaintiff’s employment was related to the well-publicised financial difficulties which the defendant companies were experiencing at the time.

102. As against this, some of the adverse effects of the dismissal were partially mitigated by the granting by the Minister of the Stamp 4 permission in April 2008 and by the offer made by An Post in June 2008 to re-engage him should a suitable position become available. But by then, however, much of the damage had already been done.

103. I will accordingly award the plaintiff a sum of €20,000 under this heading as damages for breach of his constitutional right to a good name under Article 40.3.2. In making this particular award, I am also conscious of the fact that it might be argued that this particular loss should also have been dealt with as part of the main Francovich claim and not just simply as a separate head of loss for breach of constitutional rights.

104. I am not sure that very much turns on this. It suffices to say that if Irish domestic law affords a plaintiff a remedy in a case of this kind for damage to his good name (as I have held that it does, at least in a case of this kind), the principle of equivalence requires that a similar remedy be made available even where the claim is exclusively regarded as a claim for damages arising from a breach of European law: see, e.g., Brasserie du Pêcheur at para. 68-72.
Overall conclusions
105. In summary, therefore, I have concluded as follows:

106. First, the dismissal of the plaintiff from his position in An Post in 2007 resulted directly from the wrongful failure of the State properly to apply Article 16(2) of the 2004 Directive and was unlawful.

107. Second, this breach must be regarded, when viewed objectively, as amounting as a serious breach of EU law within the meaning of the Francovich principles, as elaborated in decisions of the Court of Justice in cases such as Brasserie du pêcheur and in Ogieriakhi.

108. Third, as the plaintiff is entitled to Francovich damages for breach of European law as against Ireland and the Attorney General, I have measured that loss as €107,905.

109. Fourth, the plaintiff is also entitled, at least in the special circumstances of this case, to sue directly for damages for breach of his constitutional right to a good name under Article 40.3.2, as the ordinary common law rules regarding claims for damages for breach of contract following the wrongful dismissal from employment – and reflected in cases such as Addis v. Gramophone Co. – would be “basically ineffective” to protect and to vindicate the right to a good name. I will award the plaintiff the sum of €20,000 under this heading.

110. I will accordingly make a total award of €127,905 by way of damages in favour of Mr. Ogieriakhi as against Ireland and the Attorney General.

People (DPP) v A.D.

[2012] IESC 33
Judgment of Mr. Justice Clarke delivered the 24th May, 2012.
1. Introduction

1.1 On the 19th March, 2006 a Russian national complained to An Garda Síochána of having been assaulted and raped. As a result of investigations carried out the applicant/appellant (“Mr. D”) was charged on a number of counts and tried before the Central Criminal Court presided over by White J. In substance Mr. D was convicted of rape and assault. A count of threatening to kill contrary to s.5 of the Non-Fatal Offences Against the Person Act, 1997 was withdrawn from the jury at the close of the prosecution case. One further count gave rise to a non guilty verdict of the jury but Mr. D was convicted on counts 1 and 4, being a count of rape contrary to s.2 of the Criminal Law (Rape) Act, 1981 as amended by s.21 of the Criminal Law (Rape)(Amendment) Act, 1990 and one of assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997.

1.2 Mr. D sought leave to appeal against his conviction and sentence from the Court of Criminal Appeal. That court refused such leave in respect of conviction for the reasons set out in a judgment delivered on the 25th July, 2008 by Finnegan J. (DPP v. A.D. [2008] IECCA 101) The Court of Criminal Appeal did not, on that occasion, deal with the question of severity of sentence. That issue was considered on the 14th October, 2008 when the Court of Criminal Appeal decided, in substance, to reduce the sentence imposed on Mr. D from 12 to 9 years. Thereafter, Mr. D successfully applied for a certificate under s.29 of the Courts of Justice Act, 1924 to the effect that the decision refusing him leave to appeal against conviction involves “a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court”.

1.3 The point so certified by the Court of Criminal Appeal is as follows:

“Is the entirety of a non-incriminating statement made by an accused person while in the custody of An Garda Síochána inadmissible if during the making of the said statement the accused’s constitutional right of reasonable access to a solicitor was deliberately and consciously breached?”

1.4 On the basis of that certificate Mr. D has appealed to this Court. In addition a further application was brought on behalf of Mr. D (by motion dated the 24th January, 2012) which sought an order granting leave for argument to be heard and a determination made in relation to part of the decision of the Court of Criminal Appeal which went outside the scope of the point of law of exceptional public importance certified being the question of:-

“Whether the Court of Criminal Appeal erred in that part of its decision in which it determined that the learned trial judge applied the correct test in deciding whether to allow the prosecution case go to the jury”.

1.5 In order to fully understand the precise issues with which this Court is concerned it seems to me to be appropriate to turn to a brief recital of the facts insofar as they are relevant to the limited issues which are for this Court to decide.

2. The Facts

2.1 When Mr. D was arrested in connection with these offences he was questioned by members of An Garda Síochána on two occasions. Both questioning sessions were video recorded and the interviews were contemporaneously written down in the form of questions and answers. It is of some minor relevance to record that Mr. D is a foreign national and required the assistance of an interpreter during the course of the relevant interviews. In the ordinary way when the interviews were completed the written record was read over to Mr. D (again with the assistance of an interpreter) and he was invited to make any alterations and then sign. Mr. D duly signed both accounts.

2.2 At the trial before White J it is important to record that a number of separate objections were made to the respective admissibility in evidence of statements made by Mr. D. The second interview was deemed inadmissible in its entirety by White J on the basis that the trial judge was satisfied that, by the time the interview in question took place, the situation had progressed to one where, in the words of the trial judge, it seemed to him “that the State were in possession of sufficient evidence to charge the accused man prior to the second interview” and that he was not “happy to permit the facts of the second interview to be adduced before this jury”

2.3 So far as the first interview is concerned the evidence at the trial indicated that Mr. D had requested the presence of a solicitor. The solicitor in question arrived as the first interview was coming towards an end. Indeed the interview records a member of An Garda Síochána indicating that the solicitor had arrived and asking Mr. D if he wished to see the solicitor concerned. Mr. D answered that he did wish to see the solicitor. However, the interview did not stop at that stage. What followed was the asking of one final question of Mr. D, the reading over, with translation, of the entirety of the first interview, an invitation to Mr. D to consider whether he wished to make any changes, Mr. D making one change, and Mr. D’s signature. All of these matters occurred at a time prior to Mr. D being actually afforded access to his solicitor. That process took some time, perhaps contributed to by the need to translate, so it is all the more surprising that A.D. was not given access to the solicitor.

2.4 No explanation appears to have been tendered as to why immediate access to the solicitor in question was not afforded to Mr. D. In those circumstances it is hardly surprising that White J concluded that, from the time the solicitor in question arrived, and having regard to the fact that immediate access to the solicitor was not given despite requests, Mr. D was in unlawful custody as a result of a conscious and deliberate breach of his constitutional right of access to a solicitor. In that regard White J, in the course of a ruling delivered by him on the 23rd January, 2007, said the following:-

“It is clear both from the custody record and from the tape that the solicitor acting on behalf of the accused man had called to the station seeking to see his client and when that information was communicated to the accused man he sought to see a solicitor. The interview was not stopped at that stage as it should have been and it is clear from the tape that the interview was to proceed and that the decision to proceed with the interview was made with Garda Egan present. The Member in Charge of a Garda station has a specific duty towards an accused person. The duty of the Member in Charge is that of an independent individual who is there to protect and vindicate the rights of an accused man. It is long established that an accused person has a constitutional right of access to a solicitor and I cannot see any justification for the interview proceeding. It is apparent that one question was asked after notification of the presence of the solicitor and that then the notes were read back and proffered to the accused man for his acceptance and for his signature.”

2.5 Subsequently White J went on to rule as follows:-

“Accordingly, the signed notes will not be an exhibit in this case, but the State will be permitted to adduce evidence as regards the interview with the accused man up to the stage that is indicated in the note, being the events that occurred prior to 20:26.”

2.6 Thus it is clear that White J ruled inadmissible any evidence of the events which occurred at the interview in question after the time when Mr. D indicated a desire to see his solicitor but that request was not complied with.

2.7 It is also of some importance to note the relevance of the interviews with Mr. D to the issues which arose at the trial. In fact Mr. D made no admissions of guilt during the course of either of the interviews in question. On the contrary, he maintained that he had not even been in the town in which the offence was alleged to have been committed at the relevant time. Thus the statements which he made during the interviews in question were entirely exculpatory. In many cases, perhaps most, it would be unlikely, in those circumstances, that there would be any controversy about the admission in evidence of a statement by an accused person which did not admit any facts tending to establish guilt as such. It is in that context that an unusual feature of this case needs to be noted.

2.8 As indicated, Mr. D denied having anything to do with the events alleged by the complainant. The complainant had made an allegation of rape against Mr. D together with an allegation of a serious assault as a result of which she suffered injuries. Medical evidence confirming the relevant injuries was before the court. Mr. D’s position while being questioned by An Garda Síochána was that he was not there at the time when any incident might have occurred. It is also important, for reasons to which I will return, that Mr. D maintained that same position during the course of the second interview which latter interview occurred after he had had an opportunity to consult with his solicitor. Thus his consistent position, both before and after having had the opportunity to consult with his solicitor, on the day when he was interviewed by An Garda Síochána, was one of asserting that he had no involvement whatsoever in the events which formed the subject of the complaint.

2.9 However, before the case came to trial, the authorities had produced forensic evidence which seemed to establish that Mr. D had, in fact, had sexual relations with the complainant on the occasion in question. In those circumstances the case made by and on behalf of Mr. D at the trial was very different. Rather than assert, as he had to An Garda Síochána, that he had no involvement in the events at all, he gave evidence of consensual sexual activity and gave an entirely separate explanation as to how he suggested that the complainant might have suffered from the undoubted injuries which had been noted by medical personnel.

2.10 Against that change of tack it is hardly surprising that counsel for the D.P.P., at the trial, sought to attack Mr. D’s credibility on the basis of his having given an account to An Garda Síochána which he was forced to concede at the trial was entirely false. It is in that rather unusual way that the admissibility of an exculpatory statement by an accused came to assume a significant relevance at his trial.

2.11 One further aspect of the trial needs to be noted in the context of the additional point sought to be argued on behalf of Mr. D. There was a significant debate at the close of the prosecution case as to whether there was sufficient evidence to permit the case to go to the jury. In ruling on that application White J made a comment to the effect that, if he were sitting on the jury, he would return a verdict of not guilty. However, the trial judge went on to state the following:-

“But I cannot simply determine the issue on the basis of how I would vote as a jury member. I must look and ask myself can or should a jury, properly charged, convict without acting perversely. It is not what they should do but what they would do and with a degree of reluctance I have come to a conclusion that it cannot be said beyond reasonable doubt that a jury would be perverse in convicting. Accordingly, with that degree of reluctance, I propose to let the matter proceed to the jury”.

2.12 The additional grounds sought to be advanced arise out of those comments of the trial judge. Against the background of those facts it is next necessary to turn to the issues.

3. The Issues

3.1 Three issues arise for the consideration of the Court. The first is as to the proper principles to be applied in a case where there is an undoubted deliberate and conscious violation of the rights of an accused person while under interrogation but where that violation only arises in the course of the interrogation so that it does not, directly at least, affect the account given by the accused prior to the violation in question arising. That is, in substance, the issue or point of law certified by the Court of Criminal Appeal.

3.2 Second, there is the question, raised on Mr. D’s motion, as to whether this Court should entertain the additional ground sought to be relied on arising out of the refusal by White J of the application made on behalf of Mr. D to withdraw the case from the jury.

3.3 Third, and in the event that the Court decides to entertain that later ground, there is the question of whether the trial judge applied an inappropriate test in deciding whether the evidence was such as ought go to the jury.

3.4 It does need to be noted that a wider range of issues were canvassed before the Court of Criminal Appeal. It is unnecessary to rehearse all of those issues at this stage. However, it is next appropriate to turn to the judgment of the Court of Criminal Appeal insofar as it deals with the issues with which this Court is concerned.

4. The Judgment of the Court of Criminal Appeal

4.1 The section of the judgment of the Court of Criminal Appeal which dealt with the admissibility of the first interview commences on p.17 of that judgment. The judgment sets out the facts which have already been referred to together with the ruling of the trial judge. The judgment also notes that the jury was shown the video tape of the first interview which runs for approximately fifty minutes up to the point where the oral account of Mr. D was excluded. The way in which the issue under consideration was put by the Court of Criminal Appeal was to state that the ground referred to “whether having regard to the interview continuing by the asking a further question and the applicant being asked to sign and signing the note of interview the entire interview ought to have been excluded from evidence”. In discussing that issue the Court started by referring to the judgment of Finlay C.J. in Director of Public Prosecutions v. Healy [1990] 2 I.R. 73, where Finlay C.J. (speaking for the Court) held that a right of access to a lawyer was constitutional in its origin and that, thus, a breach of a right of access to a lawyer must amount to a breach of a constitutional right.

4.2 However, the Court of Criminal Appeal went on to note a further passage from the same judgment (at p.81) in which the following was stated:-

“The vital issue which arises, therefore, if a breach of the right of access to a solicitor has occurred as a result of a conscious and deliberate act of a member of the Garda Síochána, is whether there is a causative link between that breach and the obtaining of an admission.”

4.3 The Court then went on to consider Director of Public Prosecutions v. Buck [2002] 2 IR 268. In discussing Buck the Court of Criminal Appeal noted the observations of Keane C.J., at p.279, in relation to the dicta of Finlay C.J. in Healy to the following effect:-

“It would seem to be implicit in that finding of the Chief Justice that, if the trial judge in that case had been satisfied that the incriminating statement had been made prior to the arrival of the solicitor, it would have been admissible in evidence, since, at that point, there would have been no deliberate or conscious violation of the applicant’s constitutional right of access to a solicitor or so total a failure to observe reasonable standards of fairness as to require the exclusion of the statement.”

To like effect the Court of Criminal Appeal noted the judgment of Barrington J. in the Court of Criminal Appeal in Director of Public Prosecutions v. Finnegan (unreported, Court of Criminal Appeal, Barrington J., 15th July, 1997) where the same passage from the judgment of Finlay C.J. in Healy was referred to in the following terms:-

“The implication of this is that any statement made after 4 p.m. (when the solicitor arrived and was denied access) would have been inadmissible presumably because the prisoner was from that hour in unlawful detention because of denial of his constitutional right of access to a solicitor and any statement obtained from him was therefore inadmissible…In the present case there was a breach of Mr Finnegan’s constitutional rights when he was denied private access by telephone to a solicitor. From that point on he was in unlawful detention.”

4.4 Finnegan J., in giving the judgment of the Court of Criminal Appeal, reached the following conclusions, which are set out at pp.21 and 22 of the judgment:-

“However it is clear from the judgment of Finlay C.J. in Director of Public Prosecutions v Healy that admissibility is to be examined from the view point of cause and effect. In this case while there was a denial of right of access to a solicitor it has not been established that such a relationship of cause and effect existed between that denial and that part of the interview admitted in evidence. No attempt was made in evidence to establish such a relationship which would require that part of the interview admitted in evidence to be inadmissible.

The law it seems to this court is clear that if detention becomes unlawful by reason of the breach of a constitutional right anything that transpires thereafter may become inadmissible but anything which occurred in the course of the detention prior to the detention becoming unlawful remains admissible.”

On that basis the ground under that heading was rejected.

4.5 So far as the issue concerning the trial judge permitting the case to go to the jury is concerned it does need to be noted that the Court of Criminal Appeal was concerned with a wider challenge than that which arises before this Court. In substance it was argued before the Court of Criminal Appeal that the trial judge was wrong, in any event, to let the case go to the jury. The Court of Criminal Appeal conducted a detailed analysis of the evidence and concluded that the trial judge was correct to allow the case to go to the jury. As Finnegan J. put it “… notwithstanding any inconsistencies in the evidence there was sufficient evidence to justify the case going to the jury”.

4.6 So far as the narrower issue sought to be raised before this Court is concerned Finnegan J. said the following at p.13,:-

“In using the phrase quoted the learned trial judge said no more than that it was possible on the evidence in its then state that a jury could convict the applicant. The phrase “reasonable doubt” was not intended to convey that any onus to the criminal standard lay either on the prosecution or the defence on this issue.”

4.7 Having identified the relevant passages from the judgment of the Court of Criminal Appeal it is next necessary to turn to a discussion on the question of severance of a statement made by an accused.

5. Severance of an Accused’s Statement

5.1 Both in the written submissions filed and in oral argument counsel on behalf of Mr. D made three general points. The first was to question whether the summarisation of the law by Finnegan J. (as already cited) was correct, and whether a strict causative connection, between the portion of the statement sought to be excluded and the violation of constitutional rights established, needed to be shown The second concerned the question of the proper application of a causative connection test (if such be applicable) with a case involving, as here, false exculpatory statements, and the third concerned the fairness based exception said to derive from the judgment of Keane C.J. in Buck. I propose addressing each in turn.

5.2 Before so doing it is important that I record that the case made at trial, before the Court of Criminal Appeal, and in this Court was based on Irish constitutional jurisprudence relating to the exclusion of evidence obtained in conscious and deliberate violation of relevant constitutional rights. No case was made, whether relying on the jurisprudence of the European Court of Human Rights or otherwise, which suggested that an accused person has the right to have a lawyer in attendance while being interviewed. In view of the fact that no such case had been made either at trial or before the Court of Criminal Appeal, counsel for Mr. D quite properly accepted that no such issues were before this Court.

5.3. The Court of Criminal Appeal clearly accepted the line of authority deriving from Healy, as explained and interpreted in both Buck and Finnegan, which suggests that there must be a causative connection between the conscious and deliberate violation of the rights of the accused in question and the statement made by the accused whose admissibility is challenged. There can be little doubt but that the passages from the judgments in those cases cited by Finnegan J. in the Court of Criminal Appeal and cited earlier in this judgment support the view that such a causal connection needs to be established in order for the statement in question to be excluded.

5.4 However, counsel for Mr. D drew attention to a decision of the Court of Criminal Appeal in People (D.P.P.) v. Madden [1977] I.R. 336. In Madden the Court concluded that the experienced Inspector of An Garda Síochána who was involved in interviewing the accused must have been aware that “it was wholly improbable that a statement”, the taking of which commenced almost at the end of the relevant detention period permitted on the facts of that case, “could terminate within the period of lawful detention”. The Court went on to note that there was no evidence providing an explanation as to why the taking of a statement commenced so close to the expiration of the period of lawful detention so that the only reasonable conclusion was that “the taking and completion of the statement” invovled circumstances of a deliberate and conscious breach of the defendant’s constitutional rights.

5.5 It seems to me that the proper characterisation of the decision in Madden is that the taking of the statement, from the beginning, was in deliberate and conscious violation of the rights of the accused in that case. The Court concluded that, from the beginning, the Inspector concerned could not have hoped to have completed the process of taking a statement. It follows that the process was unlawful from the beginning rather than being one which was entirely lawful up to a certain point in time but became unlawful because of an intervening fact such as, in this case, the denial of access to a lawyer in a timely fashion. It does not seem to me, therefore, that Madden provides any assistance to the case made on behalf of Mr. D.

5.6 Counsel for Mr. D argued that part of the remit of the Court in cases where a conscious and deliberate violation of an accused’s rights has been established is to act, as it were, as a policeman to ensure respect for constitutional rights and, in that regard, that the Court should lean in favour of excluding statements made when a conscious and deliberate violation of the accused’s rights had been established. It is true that there are passages in some of the earlier judgments by which the jurisprudence in this area developed which do make the point that it is important, for the purposes of maintaining respect for constitutional rights, that an exclusionary rule be applied.

5.7 For example in The People v. Shaw [1982] 1 I.R.1, Walsh J. explained the previous decision in The People (Attorney General) v. O’Brien [1965] I.R. 142 in the following terms, at p.32,

“The case and the decision dealt primarily with two matters concerning the admissibility of evidence. The first was the question of the admissibility of evidence which was obtained illegally but where the illegality did not amount to an infringement of a constitutional right of the accused person. The second point was the question of the admissibility of evidence obtained by illegal methods which constituted infringements of the accused’s constitutional rights. With regard to the first point, the majority of the Court decided that evidence obtained illegally could be admissible at the discretion of the judge, whereas the minority members of the Court took the view that such evidence was always admissible provided that it was relevant and probative. With regard to the second point, the basic proposition was that an objection to the admissibility at a criminal trial of evidence obtained or procured by the State, its servants or agents, as a result of a deliberate and conscious violation of the constitutional rights of the accused person must be upheld, subject to certain exceptions. This general proposition was contained in my own judgment and was agreed to by all the members of the Court. I expressed the view that an exception to this general rule would be where”extraordinary excusing circumstances” existed and I gave three examples, namely, the imminent destruction of vital evidence, the need to rescue a victim in peril, and also evidence obtained by a search which was incidental to and contemporaneous with a lawful arrest, though made without a valid search warrant. I said that, in addition to these “extraordinary excusing circumstances”, evidence obtained without a deliberate and conscious violation of an accused’s constitutional rights was not inadmissible by reason only of the existence of a violation of his constitutional right. In other words, accidental and unintentional infringements of the Constitution would not be sufficient to exclude such evidence.”

5.8 It does, however, have to be noted that the cases in question were concerned with the debate, now well settled, as to the consequences of a statement being made at a time when an accused’s detention was found to have been in deliberate and conscious violation of that accused’s constitutional rights, but where the statement in question was nonetheless voluntary. The question was as to whether the statement should necessarily be excluded or whether the Court retained a discretion. It is now well settled that, save in wholly exceptional cases, the statement must be excluded. To that extent it is true that the courts have taken what might be described as a strong line on cases involving deliberate and conscious violation of constitutional rights. However, almost all of the relevant cases involved a situation where the statement under challenge was made during a period of detention which was found to be unlawful for constitutional reasons. There was, therefore, a clear causative link present in any event in that if the accused concerned had not been in unlawful custody and had, therefore, been released the statement would not have been made in the first place.

5.9 Where, however, a statement is made in circumstances where there was no illegality, let alone unconstitutionality, attaching to the accused’s custody, or to the taking of the statement concerned, up to a certain point in time, is there any reason in principle why the statement up to that point in time should not be admissible? There is, at least in the ordinary way, no obvious causal link between a subsequent lapse into constitutionally unlawful custody and previous statements made by an accused during entirely lawful custody. To impose an exclusionary rule, at the level of principle, to statements made by an accused during lawful custody simply because the accused’s custody later, albeit while the statement taking process was continuing, became unconstitutional would, in my view, be to impose an unnecessarily excessive exclusionary rule not warranted by the need to discourage improper activity by those investigating crime.

5.10 The causative link test is well established in the jurisprudence to which reference has been made. It seems to me that that test meets the legitimate requirements of discouraging constitutionally impermissible investigation while at the same time permitting lawfully obtained evidence to be placed before the Court as part of the criminal process. I am not, therefore, satisfied that there is any legitimate basis for departing from the causative link test identified by Finlay C.J. in Healy.

5.11 However, a number of other observations are necessary for the purposes of dealing with the issues which arise on the facts of this case. The first is to note that in many cases the causative link will be obvious. Where an accused is in unlawful custody deriving from a conscious and deliberate breach of the accused’s constitutional rights, then, for the reasons already analysed, the causative link does not need any further establishment.

5.12 Second, it seems to me that the Court can, at the level of principle, sever those portions of a statement or interview given by an accused which occurred during a period of constitutionally unlawful custody from those which occurred during a period of lawful custody. As a starting point there can be no doubt but that entirely separate statements or interview processes can be the subject of legitimately different conclusions. Thus one statement made during a period of lawful detention may be admitted while another statement made during a period of constitutionally impermissible detention may be excluded. Further it is to be noted that in The People (Director of Public Prosecutions) v. O’Brien [2005] 2 IR 206, this Court held that the constitutional rights of an accused were restored once he was granted access to a solicitor and that it followed that any inculpatory statement made by the accused after he had consulted a solicitor was admissible unless it was elicited from him by the use of material obtained during questioning while his constitutional right of access to a solicitor was being breached. It is clear from the judgment of McCracken J. (speaking for this Court) that the proper course of action to adopt was to analyse whether the breach of constitutional rights concerned (in that case, as here, a refusal of timely access to a lawyer) actually caused or even contributed to the statement concerned. As the accused had had access to his solicitor (albeit belatedly) before he made the statement under challenge then there was no causal connection between his previous constitutionally unlawful detention and the inculpatory statement unless a further link could be shown connecting the admissions later made with earlier statements made by the accused while in unconstitutionally unlawful custody.

5.13 I can see no good reason why the same analysis can not apply to two portions of the same statement taking or interview process where one portion occurs during lawful custody while the other occurs during constitutionally unlawful custody. Unless there is some sufficient nexus between the two parts of the statement or interview process so as to taint the otherwise lawful portion, then there is no reason to exclude that part of the interview or statement which was made while the accused was in lawful custody.

5.14 It seems to me to follow that the test adopted by the Court of Criminal Appeal in this case was correct. It is necessary that there be a causal link between any constitutionally unlawful custody and the making of a statement in order for the statement to be properly excluded. In principle it follows that any part of the statement made during lawful custody is admissible. However, where there is a link between the two parts of the statement such that there is a causal link which taints the part of the statement taken while the accused was in lawful custody then it may be necessary to exclude the entirety of the statement.

5.15 The facts of this case are clear. All that happened after Mr. D was denied access to his solicitor was that one further question was asked and answered, the statement was read over, Mr. D made one correction to the statement and signed it. None of the matters which occurred after Mr. D’s detention became constitutionally unlawful were such as to create an unfairness or nexus between what occurred during his constitutionally unlawful custody and what had gone before while he was in lawful custody. The situation might well be different if it proved impossible, with any degree of confidence, to disentangle those aspects of the accused’s account which occurred within and outside periods of lawful custody. It must be recalled that in Healy the entirety of the statement was excluded because the trial judge had been unable to determine whether the incriminating statements in that case had been made prior to or after the breach of constitutional rights complained of. In modern conditions, where the interrogation of suspects is conducted with the aid of video recording and timing, it is much less likely that any such difficulty would arise. Indeed, it is instructive to note that the ruling of White J was able to pinpoint, by reference to a precise minute on the video evidence, the point at which Mr. D’s custody became constitutionally unlawful.

5.16 However, there may be other circumstances which may create a difficulty in seeking to disentangle parts of a statement made in respectively lawful and unconstitutionally unlawful custody. The interview may range forward and backward over the events under investigation so that it is impossible, without a real risk of unfairness, to sever the portion of the statement made in constitutionally unlawful custody. There may well be cases where there would be a real risk that the admission of a portion only of a statement would give a misleading account of what was said by the accused if the jury were only to be told of the portions of the accused’s account which were given while he was in lawful custody. The significance of any account sought to be removed by severance must, of course, be assessed in the context of the real issues likely to arise at the trial.

5.17 However, I am not satisfied that any such concerns exist on the facts of this case. In the light of the limited events which occurred while Mr. D was in constitutionally unlawful custody on the facts of this case, there was not, in my view, any real risk of unfairness by admitting the portion of the interview which occurred while Mr. D was in lawful custody.

5.18 It is next necessary to say something about the point made on behalf of Mr. D about the exclusion of exculpatory statements. In substance the argument made by counsel on Mr. D’s behalf under this heading stemmed from the use made by the prosecution at the trial of Mr. D’s statement for the purposes of undermining his credibility. As pointed out earlier Mr. D gave evidence at the trial and was forced to admit that the original account given to An Garda Síochána was false. It was argued on behalf of Mr. D that there was a realistic prospect that, had he been afforded access to his solicitor when he should, his solicitor might have advised him to, as it were, come clean, thus significantly reducing the extent to which his statements, taken as a whole, might have been used to discredit him at the trial. Thus, even to the extent that the Court was persuaded that a causal link needed to be established, it was said that a causal link did exist between the unconstitutional deprivation of access to a solicitor and the adverse evidential consequences for Mr. D of the admission of the partial statement in this case.

5.19 While there may be some theoretical validity to the point made by counsel, it seems to me that the answer given on behalf of the D.P.P. to this point was, on the facts of this case, coercive. Attention was drawn to the fact, as already noted, that Mr. D had made a second statement or interview after he had had access to his solicitor and received whatever advice might have been forthcoming. Despite that fact Mr. D continued to maintain that he was not there on the occasion in question. Whatever might, therefore, be the possibility in another case that an accused might have mitigated any adverse effects of having given an initial false account to An Garda Síochána by coming clean during the same interview process with the benefit of legal advice, that possibility has no application to the facts of this case for it is clear that, despite legal advice, Mr. D did not change his account.

5.20 Under this heading it should finally be noted that the trial judge had the benefit of a transcript of the second interview and was thus able to assess the account given by Mr. D on that occasion. While it is true that the trial judge excluded the second statement as evidence which could be admitted to prove the guilt of the accused at the trial, it does not seem to me that the trial judge was required to exclude that second statement from his consideration in deciding whether or not to admit either or both statements. In addition, it does need to be said that no argument was addressed to the trial judge concerning the possibility that the accused might have come clean had he had the benefit of legal advice and might, therefore, have reduced the extent to which his false denial of any involvement could have been used to affect his credibility.

5.21 In summary under this heading I am, therefore, satisfied that the causal link test is one which needs to be applied in circumstances where an accused comes to be detained in conscious and deliberate violation of constitutional rights. It follows that a part of a statement made or interview given during a period when the accused is in constitutionally unlawful custody must be excluded but that, prima facie, any part of the statement made or interview given during a period of lawful custody can be admitted. However, that latter statement is subject to the caveat that, if it can be shown that there is a real risk of unfairness by admitting only part of a statement, then it may well be that the trial judge will have to exclude the entirety of the statement concerned. It also follows that the overall consideration of fairness, identified by Keane C.J. in Buck, is met by the application of that caveat.

5.22 On the facts of this case it seems to me that Finnegan J was correct in concluding that the portion of the statement made prior to the denial of access to a lawyer was correctly admitted by the trial judge for there was no basis on which it could have been concluded that the admission of that portion of the statement gave rise to any real risk of unfairness. Having dealt with the points certified by the Court of Criminal Appeal it is next necessary to turn to the two issues which arise from the motion in which it is sought to raise further argument.

6. Should the additional point of law be considered?

6.1 No application was made to seek to certify the point of law now sought to be raised as an additional point for the purposes of a certificate under s.29(2) of the Courts of Justice Act, 1924. Indeed it was, in effect, accepted by counsel on behalf of Mr. D that the point would not have warranted certification. In those circumstances the matter is now governed by a s.29(5A) of the Courts of Justice Act, 1924 (as inserted by s.59 of the Criminal Justice Act, 2007) which provides as follows:-

“The Supreme Court, in an appeal under subsection (2) or (3) of this section, may, if it considers it appropriate to do so, hear argument and make a determination in relation to any part (not only the point of law of exceptional public importance which is the subject of the certificate concerned issued under whichever of those subsections is appropriate) of the decision of the Court of Criminal Appeal concerned.”

6.2 The previous jurisprudence of this Court made it clear that a rehearing of the entire appeal was possible if a s.29 certificate was granted, even though the s.29 certificate related only to a limited aspect of the issues which arose before the Court of Criminal Appeal. It was suggested by Geoghegan J in D.P.P. v. McKevitt [2009] 1 IR 525 at p.529 that the right “to argue different grounds has now been greatly restricted by section 59 of the Criminal Justice Act, 2007”.

6.3 In truth s.29(5A) gives very little guidance as to the circumstances in which it is appropriate for this Court to allow grounds beyond those certified to be argued. The test is no more than that this Court “considers it appropriate so to do”. It seems clear that there is now a discretion vested in this Court but the precise criteria by reference to which the discretion should be exercised are not clear.

6.4 It was argued on behalf of the D.P.P. that the point sought to be argued is very much one which depends on the facts of this case and is of no general application and that that was a factor which ought lean against the court exercising its discretion to entertain the point. It does not seem to me that this is the case in which it is necessary to set out any exhaustive analysis of the circumstances in which this Court ought to “consider it appropriate” to entertain additional points to those certified. The motion was heard at the same time as the trial and the court decided de bene esse to hear argument on the merits of the point. I am satisfied that there is a point of some importance raised in the issue sought to be argued. It might be said, to borrow a term used in relation to the construction of legally binding documents, that, on a literal construction of what the trial judge said in his ruling on the question of whether the case should go to the jury, an incorrect test was applied. The question raised is as to whether, having regard to the overall context of the argument which the trial judge had heard and on which the trial judge was ruling and the further context of the ruling itself, taken as a whole, it can be said that the trial judge, in truth, applied a wrong test. In those circumstances it seems to me to be appropriate to go on to consider the merits of the point sought to be argued.

7. What test did the trial judge apply?

7.1 It is agreed by both sides and does not appear to have been in dispute, to any significant degree, at the trial, that the test to be applied when an application is made of “no case to answer” is as set out by the English Court of Appeal in R. v. Galbraith [1981] 73 Cr. App. R 124, which is as follows:-

“How then should the judge approach a submission of “no case”? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

7.2 These principles have been approved and adopted in this jurisdiction in a number of cases not least The People (D.P.P.) v. M. (unreported, Court of Criminal Appeal, Denham J. 15th February, 2001).

7.3 It is sometimes said that the test is as to whether a jury would be perverse in convicting. That is, perhaps, a shorthand for saying that a jury properly directed could not convict. Be that as it may the only issue which arises under this heading is as to whether the trial judge applied the Galbraith test or whether the wording of his ruling, which has already been cited, and which uses the phrase “that it cannot be said beyond reasonable doubt that a jury would be perverse in convicting”, suggests that the trial judge applied a wrong or different test.

7.4 Taken in total isolation and entirely out of context it might be said that the words just cited could be taken to imply that the trial judge considered that the case should go to the jury unless he was satisfied beyond reasonable doubt that a jury would be perverse in convicting.

7.5 In that context it is important to note that this Court is now concerned with a ruling of the trial judge on an application made in the absence of the jury. This is not language used by the judge in the presence of the jury or, in particular, in the judge’s charge to the jury. In such circumstances the Court may well have to consider what effect the use of particular language might have had on the jury itself whose members will not, of course, have legal training. Here, however, the Court is simply concerned with interpreting an ex tempore ruling of the trial judge made in the course of the trial after full legal argument on both sides.

7.6 It is important to note that there was no real dispute between the parties as to the test to be applied. In addition, as recorded in the transcript, the trial judge makes specific reference to Galbraith in his ruling. The trial judge noted that counsel on behalf of Mr. D had placed reliance on Galbraith together with other authorities. The trial judge also noted that counsel on behalf of the Director of Public Prosecutions had argued that “having regard to the decision of the Court of Criminal Appeal in The Director of Public Prosecutions and M., a judgment delivered by Mrs Justice Denham, that it should be slow to withdraw this case from the jury, and that this is a matter that is quintessentially a matter for the jury, and that the issues of reliability and credibility are quintessentially matters for the jury.”

7.7 That analysis by the trial judge of the argument of counsel on both sides comes immediately before the passage from his ruling already cited from which it is argued that the trial judge applied a wrong test. There is nothing in the ruling of the trial judge to suggest that there was any real dispute between counsel as to the test to be applied or that any argument was put forward on behalf of the Director of Public Prosecutions to the effect that the test was not as found in Galbraith. Rather it is clear that the trial judge took the view that the basic principles to be applied were as agreed by counsel with the difference between the respective positions of counsel being as to the application of those principles to the facts of the case. Against the absence of any disagreement at the level of principle between counsel coupled with the absence of any suggestion in the ruling of the trial judge that he proposed departing from the principles agreed by counsel, it would be surprising in the extreme if White J, without setting out detailed reasons, would have departed from those principles. The passage from his ruling already cited, and on which counsel for Mr. D places reliance for his argument, needs to be seen in that context.

7.8 It also needs to be noted that no intervention came from counsel immediately after the ruling was made to suggest that the trial judge had applied an incorrect test. While it might be said that it would not be appropriate for counsel to question the ruling of the trial judge after it had been made nonetheless, if it had transpired that the parties agreed, in argument, on the appropriate test and the trial judge, off his own bat, had applied an entirely different test, it could hardly be said that it would not be open to counsel to seek to have the issue revisited. The only reasonable conclusion to reach is that counsel did not consider, on the day in question, that the trial judge had done other than apply the agreed Galbraith test.

7.9 But perhaps of even more importance is the fact that the trial judge himself identified in his ruling the Galbraith test and referred to it in a way that does not imply any disagreement with or any refinement of it.

7.10 It seems to me that Finnegan J was entirely correct when he concluded that the proper construction to place on the ruling of the trial judge was that the trial judge meant no more than “that it was possible on the evidence in its then state that a jury could convict the applicant”.

7.11 It follows that the appeal under this heading must also be dismissed.

8. Conclusions

8.1 In those circumstances I would dismiss the appeal on the grounds certified by the Court of Criminal Appeal, allow Mr. D to raise the additional point sought to be raised in his motion, but dismiss the appeal on that ground as well.

 

D.F. v Garda Commissioner (No.3)

[2014] IEHC 213
JUDGMENT of Mr. Justice Hogan delivered on the 11th day of April, 2014
1. The plaintiff in these proceedings is a 28 year old man who, it is acknowledged, is severely autistic. As the proceedings are presently constituted the plaintiff claims 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 plaintiff further claims for damages for breaches of constitutional rights and for damages for breach of his rights under the European Convention of Human Rights Act 2003 (“the 2003 Act”). The plaintiff also claim damages for breaches of his 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”). The plaintiff additionally seeks declaratory relief in relation to the illegality of the arrest.

2. The defendants now contend that some of these claims should be struck as either unsustainable in their own right or as otherwise merely replicating claims for damages in respect of nominate torts of assault and false imprisonment. To this end they have applied by motion to have the claims based on breach of constitutional rights, breach of the 2003 Act, the Charter and the UN Convention struck out in a summary basis. They also contend that it is inappropriate for a court to grant declaratory relief in aid of these common law and other remedies. I will presently consider these claims in due course, but it is first necessary to sketch out the background facts of the case.
The background facts
3. The incident which gave arise to these proceedings occurred on 24th September, 2010. The plaintiff’s testamentary guardian, Ms. M., contends that on that afternoon Mr. F. had taken up his habitual position outside his grandparents’ house when he was unlawfully arrested by members of An Garda Síochána at about 5pm in the evening and brought to a local Garda station. It is contended that no effort was made by the Gardaí 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 plaintiff’s 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 Gardaí 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 Gardaí 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 5.10 p.m., the Gardaí 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 p.m. 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 plaintiff’s house where he spoke with the plaintiff’s 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. I have already delivered two judgments dealing with diverse aspects of this case. In DF v. Garda Commissioner (No.1) [2013] IEHC 5 I held that the plaintiff was entitled to jury trial in respect of these claims, with the proviso that all issues bearing on the legality of the arrest were to be determined by the trial judge alone. In DF v. Garda Commissioner (No.2) [2013] IEHC 312 I ruled that the proceedings were to be heard in open court, without any restrictions identifying the plaintiff. A stay was subsequently granted by the Supreme Court in respect of this latter order and it follows that the name of the plaintiff in the present judgment is given in redacted form.
The scope of the pleadings
10. Before determining questions as to whether these claims are sustainable or purely duplicative of subsisting common law claims, is first 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 plaintiff’s arrest and detention were both unlawful.

11. 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, but there are also claims for damages for specific breaches of constitutional rights – liberty, bodily integrity and privacy, along with “the personal constitutional rights of the plaintiff which they were bound to protect.” For ease of reference I will treat these compendiously in this judgment as rights deriving from Article 40.3.1, Article 40.3.2 and Article 40.4.1 – essentially, the rights to bodily integrity, person and liberty – even if they are not always quite pleaded in this form.

12. 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 plaintiff’s 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”).

13. A further consideration is that in the light of my judgment in DF (No.1) the present action will be tried by a jury, subject to the proviso that I have ruled that it is trial judge alone who must rule on all aspects of the legality of the arrest. This makes it all the more desirable that the issues raised in the pleadings are determined in an orderly fashion: see, e.g., the comments of Smyth J. in Hanly v. News Group Newspapers Ltd. [2004] 1 I.R. 475 and those of McGovern J. in Doherty v. Minister for Justice [2009] IEHC 246. In this particular context, therefore, it is all the more important that the potential for confusion arising from overlapping and duplicative claims should, where possible, be avoided.

14. I accordingly propose to examine the gist of the individual claims. If the claims simply duplicate or cannot add anything to the well established nominate torts of false imprisonment, assault and battery or if they present no justiciable issue, I propose to strike them out pursuant to the courts’ inherent jurisdiction at this preliminary stage.

15. It is nevertheless important to recall that, as I pointed out in my judgment in Beausang v. Irish Life and Permanent plc [2014] IEHC 1 that:

“….the summary strike out jurisdiction is not well adapted to cases raising novel and difficult issues, whether of fact or law. As Cozens-Hardy M.R. observed in Dyson v. Attorney General[1911] 1 K.B. 410, 414, the summary strike-out jurisdiction should not be applied ‘to an action involving serious investigation of ancient law and questions of general importance.’”
16. I then noted that this latter passage was quoted with approval by Keane J. in Irish Permanent Building Society v. Caldwell (No.1) [1979] I.L.R.M. 273, 276. In that case the defendants contended that the plaintiff building society had no locus standi to challenge the registration by the Registrar of Building Societies of one of the defendants as a building society. To this end the defendant brought a motion seeking to strike out the proceedings on the ground that they were unsustainable by reason of the fact that the plaintiff lacked standing to maintain them.
17. Keane J. refused to take this step, saying that ([1979] I.L.R.M. 273, 276-277) he was not satisfied that:

“On an application of this nature the High Court should finally determine the difficult and complex question of law involved. I think that the plaintiffs are entitled to a full and unhurried consideration of the questions they have posed for a resolution by the High Court and that this cannot, in a practical manner, be achieved within the limitations of a motion such as the present.”
18. While making appropriate allowances for this principle, if, nevertheless, the claim is manifestly duplicative of an established cause of action or, alternatively, it is unsustainable in law, it should nevertheless be struck out at this preliminary stage.
19. These individual claims can now be considered separately.
The constitutional claims
20. It may be here convenient to break down the individual claims and to assess the claims based on specific nominate torts by reference to the individual constitutional guarantees. The governing question in essence is identical in all of these particular cases: can it be said that the nominate tort provides an adequate or complete mechanism for the vindication of individual rights?
The tort of false imprisonment and the claim for damages for breach of constitutional right to liberty
21. The tort of false imprisonment has been summarised thus by Fawsitt J. in Dullaghan v. Hillen (1957) Ir.Jur.Rep. 10, 15:

“False imprisonment is the unlawful and total restraint of the personal liberty of another, whether by constraining him to go to a particular place or confining him in a prison or police station or private place or by detaining him against his will in a public place. The essential element of the offence is the unlawful detention of the person or the unlawful restraint on his liberty. The fact that a person is not actually aware that he is being imprisoned does not amount to evidence that he is not imprisoned, it being possible for a person to be imprisoned in law, without being conscious of the fact and appreciating the position in which he is placed, laying hands upon the person of the party imprisoned not being essential. There may be an effectual imprisonment without walls of any kind. The detainer must be such as to limit the party’s freedom of motion in all directions. In effect, imprisonment is a total restraint of the liberty of the person. The offence is committed by mere detention without violence.”
22. As McMahon and Binchy observe in their magisterial textbook, The Irish Law of Torts (Dublin, 2013) (at 911) these comments of Fawsitt J. represent “an admirably succinct statement of the principal features of the tort.” It is clear from this exposition of the parameters of the tort of false imprisonment that it may accordingly be regarded as a complete and full vindication of the guarantee of personal liberty in Article 40.4.1. Liability for false imprisonment is strict and is not based on notions of fault or negligence. By providing a mechanism for the protection of individual liberty in this fashion the common law may thus be said to give full effect to this particular constitutional guarantee.
23. The claim for damages for breach of the constitutional right to liberty accordingly adds nothing to the common law action for false imprisonment. Adapting the language of Baker J. in PR v. KC [2014] IEHC 126, it may be said that the claim for damages of the constitutional right to liberty “is no more than an ancillary claim or another way…of seeking the same relief.”

24. In these circumstances, with a view to bringing regularity to the proceedings and avoiding unnecessary duplication – especially in a case which will be tried with a jury – the defendants are accordingly entitled to say that this claim for damages for breach of constitutional right to liberty entirely replicates the action for false imprisonment and adds nothing to it. In these circumstances, I will therefore strike out the claim for damages for breach of constitutional right to liberty as it is simply another way of claiming the same relief.
The claims in assault and battery and the actions for damages for breach of constitutional rights to the person, bodily integrity and privacy
25. The tort of battery is summarised thus by McMahon and Binchy (at 898) as “the direct application of physical contact upon the person of another without his consent, express or implied.” The tort of assault is described by them (at 903) as consisting of “an act which places another person in reasonable apprehension of an immediate battery being committed upon that person.”

26. Dealing with the nature of these torts in her judgment in PR Baker J. first quoted with approval from the following passage from the judgment of Fawsitt J. in Dullaghan v. Hillen [1957] Ir. Jr. Rep. 10 at 13, where the court stated the rationale of the tort of assault as follows:-

“Security for the person is among the first conditions of civilized life. The law, therefore, protects us, not only against actual hurt and violence, but against every kind of bodily interference and restraint not justified or excused by allowed cause, and against the present (immediate) apprehension of any of these things.”
27. Baker J. then added that in this respect “the common law may be regarded as a realisation of the constitutional command in Article 40.3.2 that the State must protect and vindicate the person.” The real question, however, in the present case is not whether these nominate torts serve to realise this constitutional commitment – since this much is not in dispute – but rather whether these common law torts can be regarded as providing a complete and full mechanism for vindicating the substance of the relevant constitutional guarantees in all circumstances.
28. As I observed in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 235, [2012] 1 I.R. 467, 471. Article 40.3.2 protects “not simply the integrity of the human body, but also the integrity of the human mind and personality.” In addition, the constitutional protection of the person must also be understood by reference to the Preamble’s objective that the dignity and freedom of the individual may be protected: see here Connolly v. Governor of Wheatfield Prison [2013] IEHC 334.

29. If Baker J. was surely correct to say in PR that the nominate torts of assault and battery may generally be regarded as a realisation of the constitutional command in Article 40.3.2 to protect the person, then the question which arises here is whether there are any circumstances at all in which these constitutional guarantees can be called in aid in order to supplement these torts. Here it must be recalled that the tort of assault requires a prior apprehension of a battery before it actually takes place and that absent this apprehension, no tort of assault is committed: see McMahon and Binchy at 903.

30. This specific limitation might be particularly relevant in the present case given that with the plaintiff’s mental condition it might ultimately transpire at the trial of the action that he lacked the cognitive capacity to have had any understanding of the conduct of the Gardai in seeking to restrain and arrest him, so that the question of any assault would simply not arise. In these circumstances and in view of this particular limitation on the scope of the tort, the plaintiff might be able to show at the full trial of the action that this nominate tort was, in the words of Henchy J. in Hanrahan v. Merck, Sharp & Dohme Ltd. [1988] I.L.R.M. 626, 636 “basically ineffective” to protect his constitutional rights to the protection of the person and bodily integrity.

31. Naturally, it must be stressed that the Gardai maintain that at all times they acted lawfully in arresting the plaintiff and that there was no tortious or other unlawful conduct on their part. That, however, is not the precise question which I have to consider, as my task for the purposes of this particular motion is to consider whether there are any circumstances in which the plaintiff might be able to invoke a constitutional remedy to supplement or augment his reliance on the nominate torts of assault and battery.

32. In view of the fact that such circumstances can readily be identified – at least so far this particular plaintiff is concerned – I will not strike out on a summary basis the claims based on the constitutional rights to the person and the cognate and overlapping rights such as bodily integrity and privacy. This is because it is just possible that the plaintiff will be able to demonstrate at the full hearing of the action that these nominate torts of assault and battery will insufficiently vindicate these constitutional rights to the integrity of the person so far as the manner of his arrest by members of the Gardaí are concerned.

33. In view of these possible uncertainties regarding the interaction of both these nominate torts and the relevant constitutional provisions relied upon by the plaintiff, it is appropriate to have regard to the principles articulated by Keane J. in Irish Permanent regard the summary disposal of complex legal question. This in itself is sufficient to demonstrate that it would be inappropriate to strike out these particular claims.
The claims under the European Convention of Human Rights Act 2003
34. The plaintiff claims damages for breaches of specific provisions of the Convention, including Article 3 (inhuman and degrading treatment) and Article 5 (personal liberty). The inclusion of these claims, however, invites a number of observations.

35. 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, [2010] 2 IR 199, and MD v. Ireland [2012] IESC 10, [2012] 2 I.L.R.M. 305. In fact, strictly speaking, damages can only be claimed under s. 3(2) of the 2003 Act insofar as it is alleged that the plaintiff has suffered loss by reason of a failure of an organ of the State to “perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”

36. Second, s. 3(2) of the 2003 Act 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. 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, insofar as this claim would not be adequately vindicated on the facts of his case by the nominate torts of assault and battery, he could sue for damages for breach of his constitutional right to the protection of the person in Article 40.3.2. The express constitutional protection of the person necessarily precludes inhuman and degrading treatment of this kind: cf. by analogy my own judgment in Kinsella v. Governor of Mountjoy Prison [2011] IEHC 353, [2012] 1 I.R. 467.

37. As was pointed out in Kinsella, the protection of the person in Article 40.3.2 (including the overlapping right to bodily integrity derived from Article 40.3.1) entails the protection of the integrity of both the mind and the body. Given that the parameters of this constitutional guarantee must also be understood by the Preamble’s commitment to safeguarding the dignity of the individual, it is plain that Article 40.3.2 clearly prohibits all forms of torture and inhuman and degrading treatment, as this would necessarily be inconsistent with the constitutional protection of the integrity of the human mind and body.

38. This is far from a new idea or insight. As Finlay P. observed in The State (C.) v. Frawley [1976] I.R. 365, 374 in the context of the relationship between unenumerated rights under Article 40.3.1 and Article 3 ECHR:

“If the unspecified personal rights guaranteed by Article 40 follow in part or in whole from the Christian and democratic nature of the State, it is surely beyond argument that they include freedom from torture, and from inhuman and degrading treatment and punishment. Such a conclusion would appear to me to be inescapable even if there had never been a European Convention on Human Rights, or if Ireland had never been a party to it.”
39. It has not been suggested that the remedies available under the common law and, where appropriate, the Constitution are in some way inadequate or that they cannot otherwise adequately vindicate the plaintiff’s rights under the ECHR. In this respect, by analogy with the approach already taken with regard with the claim for damages for breach of constitutional right to liberty, the claim based on the personal liberty provisions of Article 5 ECHR adds nothing to the existing claim in respect of the nominate tort of false imprisonment, even if one overlooks the altogether important point that a claim as expressed in that fashion is not, as such, justiciable having regard to the provisions of s. 3 of the 2003 Act.
40. Returning, therefore, to the language of Baker J. in PR it can be said likewise that this claim adds nothing to the nominate tort of false imprisonment. It follows, therefore, that with a view to avoiding duplication and potential confusion, I will therefore strike out this claim as well.

41. Much the same can be said of the claim based on Article 3 ECHR. Insofar as the common law torts of assault and battery offered inadequate protection to the plaintiff’s rights in the present case, every protection in respect of the guarantee against torture and inhuman and degrading treatment is necessarily and by definition subsumed in the concomitant protection of the person in Article 40.3.2 and the protections of bodily integrity in Article 40.3.1. I will accordingly strike out the claim based on Article 3 ECHR as well as adding nothing to the existing claims for damages for assault and battery as well as to the those for breach of constitutional rights which have not themselves been struck out.
The claims based on the EU Charter of Fundamental Rights
42. The plaintiff claims damages for breach of the guarantees contained in Article 3 (physical and mental integrity), Article 4 (prohibition of inhuman and degrading treatment), Article 6 (liberty) and Article 7 (family life) of the EU Charter of Fundamental Rights. It is thus claimed, for example, that the plaintiff’s rights under Article 3 of the Charter were infringed in that he was subjected to “a search of his person in the absence of a medical practitioner and without his parents’ knowledge, authority or consent.”

43. Insofar as the Charter of Fundamental Rights is concerned, it must be recalled that the rights protected by the Charter are engaged so far as Member States are concerned 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.

44. All of this is illustrated by the recent decision of the Court of Justice in Case C-617/10 Åkerberg Fransson [2013] E.C.R. I-000. Here the question was whether the ne bis in idem provisions of Article 50 of the Charter applied to a tax penalty imposed for VAT purposes. The taxpayer in this case had previously paid administrative tax penalties and the issue of whether this precluded the application of further penalties in later proceedings accordingly arose. The critical question which had been raised by the Swedish referring court whether it could be said that Sweden was “implementing” Union law for the purposes of Article 51(1) of the Charter in the course of taking a subsequent criminal prosecution for VAT evasion.

45. A Grand Chamber of the Court of Justice held in essence that the Charter bound Member States “when they act in the scope of Union law” and that this is what the phrase “implementing” Union law in Article 51(1) really means. The Court of Justice then held that Sweden was “implementing” Union law in the present case because “the tax penalties and criminal proceedings to which Mr Åkerberg Fransson has been or is subject are connected in part to breaches of his obligations to declare VAT.”

46. The Court then pointed to specific anti-evasion provisions of the consolidated VAT Directive 2006/112/EC which ensured that Member State are under an obligation to take all legislative and administrative measures appropriate for ensuring collection of all the VAT due on its territory and for preventing evasion. Given further that VAT revenue formed part of the Union’s own resources it followed that:

“…there is thus a direct link between the collection of VAT revenue in compliance with the European Union law applicable and the availability to the European Union budget of the corresponding VAT resources, since any lacuna in the collection of the first potentially causes a reduction in the second….It follows that tax penalties and criminal proceedings for tax evasion, such as those to which the defendant in the main proceedings has been or is subject because the information concerning VAT that was provided was false, constitute implementation of Articles 2, 250(1) and 273 of Directive 2006/112 (previously Articles 2 and 22 of the Sixth Directive) and of Article 325 TFEU and, therefore, of European Union law, for the purposes of Article 51(1) of the Charter.”
47. While it is probably fair to say that Åkerberg Fransson represents the outer limits of the “implementing Union law” principle, yet even in that case there was, however, a link between the domestic prosecution in respect of the VAT fraud and the application of European Union law. In the present case there is simply no such link, since under no possible circumstances could it be said that the arrest of the plaintiff pursuant to a purely domestic statute was within the scope of European Union law.
48. For the reasons stated, therefore, it is plain that the claim based on the alleged operation of the Charter is doomed to fail, since under no possible circumstances could it be said that Ireland was “implementing” Union law within the meaning of Article 51(1) – a mandatory pre-condition to the very application of the Charter – by effecting the arrest of the plaintiff pursuant to s. 12 of the 2001 Act.

49. It follows, therefore, that this aspect of the claim is entirely unsustainable and must be struck out pursuant to the inherent jurisdiction of this Court.
The claims based on the 2006 UN Convention
50. So far as the claims based on the 2006 UN Convention are concerned, it must be stressed that the Convention itself 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. Given the dualist nature of the Constitution, it is absolutely clear that an international agreement cannot prevail over domestic law, save to the extent that such agreements have been made part of our domestic law: see In re O Laighléis [1960] IR 93. In these circumstances, the 2006 Convention cannot of itself give rise to any justiciable legal rights or controversies.

51. It is true that the situation is different at EU level where the monist tradition prevails. Thus, by virtue of Article 216(2) TFEU where international agreement are concluded by the European Union they are binding on the institutions of the Union and they prevail over inconsistent legislative acts of the Union: see, e.g., Case C-366/10 Air Transport Association of America [2011] E.C.R. I-000. It is equally clear that such union legislation must be interpreted, so far as possible, in a manner consistent with the international agreement in question.

52. The EU has itself by virtue of Decision 2010/48 approved the UN Convention, so that the Convention is thus part of the European Union legal order. The Court of Justice has further confirmed that Directives dealing with employment rights and non-discrimination (such as the Equal Treatment Directive 2000/78/EC) must be interpreted in the light of that Convention: see Case C-335/11 HK Danmark/Ring [2013] 2 CMLR 21.

53. Yet insofar as the Convention is justiciable at all in an Irish court in the absence of legislation giving effect to that Convention as part of the domestic law of the State, it can be only so insofar as the matter raised is within the scope of application of European Union law. That would be the case if, for example, an Irish court was, for instance, called upon in an appropriate case to interpret the Equal Treatment Directive.

54. The circumstances of the present case are, however, some distance from those governed by the Equal Treatment Directive. As I have already pointed out, the present case involves the application of a domestic statute to a set of facts which are wholly internal to this State. No question of the application of European Union law arises.

55. As this case is accordingly governed entirely by Irish law, the 2006 Convention could only be justiciable in the event that there was a domestic law which gave effect to its provisions. Since the Oireachtas has not enacted such legislation, it follows, therefore, that the claim based on the 2006 Convention is doomed to fail and must be struck out pursuant to the inherent jurisdiction of the Court.
Whether the plaintiffs are entitled to declaratory relief
56. The defendants also seek to have the plaintiff’s claims to declaratory relief in respect of the legality of the arrest of struck out. It is true that it has never hitherto been the practice of the courts to grant declaratory relief in aid of claims in tort of this kind at common law. This is doubtless because any award of damages – which will generally be awarded by a jury – is regarded as a sufficient vindication of the wrong done. Furthermore, the premise of any award of damages for, say, false imprisonment is that the plaintiff was falsely detained.

57. To some extent, however, the fact that such relief is never sought in aid of these claims may be an historical accident, reflecting the traditional distinction between the common law remedies (damages) and other equitable remedies (such as a declaration). But for one complication – which I shall address in a moment – there would seem to be no reason in principle why the courts should not now exercise the declaratory jurisdiction in aid of legal rights derived from the common law. It has never been suggested, for example, that a court should not be able to award a declaration in respect of a breach of contract claim, even if damages are also awarded to the wronged party as well.

58. The complication, however, derives from the fact that this trial will also be with a jury, even if by reason of my earlier judgment in DF (No.1), vital parts of the case will fall to be determined by the trial judge. The jury have, however, been given no jurisdiction to award a declaration in respect of claims of this kind. Indeed, it may be noted that in the admittedly special case of defamation, s. 28 of the Defamation Act 2009 now enables a plaintiff to apply to the Circuit Court sitting without a jury for a declaration in respect of the defamatory material in question. Yet no such powers were conferred by the Oireachtas on the High Court when hearing defamation actions with a jury.

59. While this example of statute is not dispositive, it is nonetheless a recent implicit recognition by the Oireachtas of the impracticability of declaratory awards in jury cases. Perhaps another way of looking at this matter is to say that where the plaintiff elects for jury trial in respect of a claim of this kind, he must normally accept the traditional boundaries and limitations of that procedure. It cannot be said that the possibility of a jury award of damages alone is an ineffective remedy for the protection and vindication of the constitutional rights to liberty and the person for the purposes of Article 40.3.2, since, as I have already noted, any such award is premised on the illegality of the arrest or other tortuous conduct complained of so that in that sense the grant of any further declaratory relief in respect of the illegal conduct in question might seem superfluous.

60. Given that this action will be set down for trial with a jury, it follows that the claims for declaratory relief in aid of these common law claims is inappropriate and potentially confusing. The existence of such a claim might suggest to the jury that they have a particular function over and above the determination of the specific issues of fact which they are required to try and to make the ultimate decision – subject to the appropriate rulings of the trial judge on issues touching on the legality of the arrest – as to whether they should award damages.

61. In these circumstances, I will accordingly strike out the claims for declaratory relief.
Conclusions
62. It remains only to summarise my conclusions.

63. First, given the multiplicity of claims brought by the plaintiff, it is appropriate that this court should ensure that the pleadings are presented in a regular and orderly way. This is especially so given that the trial will be conducted before a jury.

64. Second, in view of the fact that the plaintiff is suing for damages for false imprisonment, I will strike out the claim for damages based on Article 40.4.1. The tort of false imprisonment provides a full and complete protection for the constitutional right of personal liberty and the claim based on breach of constitutional rights adds nothing to that claim.

65. Third, it is otherwise in the case of the claims based on a breach of Article 40.3.2 in respect of the protection of the person and allied overlapping claims in respect of the unenumerated bodily integrity under Article 40.3.1 which I will not strike out at this preliminary stage. This is because it is just possible that the plaintiff will be able to demonstrate at the full hearing of the action that these nominate torts of assault and battery will insufficiently vindicate these constitutional rights to the integrity of the person so far as the manner of his arrest by members of the Gardaí are concerned, particularly having regard to the requirement that the tort of assault requires a prior apprehension of a battery before it actually takes place, which, having regard to the plaintiff’s mental condition, he might not be able to satisfy.

66. Fourth, as it has not been established that the remedies available under the common law torts of false imprisonment and assault and battery and, where appropriate, in respect of the remaining constitutional claims are in some way inadequate or that they cannot otherwise adequately vindicate the plaintiff’s rights under the ECHR, I will strike out these claims relying on the ECHR Act 2003 in their entirety. Given the breadth of the protections available in respect both of these common law claims and the remaining constitutional claims, it has not been shown that the claims resting on the 2003 Act can add anything, at least so far as the parameters of the present case is concerned.

67. Fifth, it is plain that the claim based on the alleged operation of the Charter is doomed to fail, since under no circumstances could it be said that Ireland was “implementing” Union law within the meaning of Article 51(1) – a mandatory pre-condition to the very application of the Charter – by effecting the arrest of the plaintiff pursuant to s. 12 of the 2001 Act. It follows, therefore, that this aspect of the claim is entirely unsustainable and must be struck out pursuant to the inherent jurisdiction of this Court.

68. Sixth, the Oireachtas has not made the UN Convention on the Rights of Persons with Disabilities part of the domestic law of the State in accordance with Article 29.6 of the Constitution. It follows that the claims which rely on the 2006 Convention must be struck out as not presenting any justiciable controversy.

69. Seventh, given that the present proceedings will be tried with a jury, it would be inappropriate and confusing to include a claim for declaratory relief, since the jury have no role or function in relation to this remedy. If the plaintiff’s underlying claims are well founded, he will be adequately vindicated by an award of damages. I will accordingly strike out the claims for declaratory relief.

Murray v Commission to Inquire into Child Abuse

[2004] I.E.H.C. 225, [2004] 2 I.R. 222

JUDGMENT of Mr. Justice Henry Abbott delivered the 27th day of January, 2004.

INTRODUCTION
The plaintiffs are members of, and nominated to represent the interests of, the congregation of the Christian Brothers. The first named defendant is a body corporate established pursuant to the provisions of the Commission to Inquire Into Child Abuse Act, 2000 (hereafter “the Act”). The plaintiffs dispute a final ruling of the Investigation Committee of the first named defendant made on the 18th October, 2002.

In simple terms the issue in the proceedings is whether the Committee is empowered to make a finding of serious sexual abuse by one person in a particular institution of another, within that institution, within a period many years ago in circumstances where that first person is either dead, under a disability, unplaced or disadvantaged in the inquiry by reason of being hampered or hindered from rebutting the allegations, due to prejudice caused by the lapse of time since the alleged incidents took place.

THE ACT

The long title of the Act is as follows:

AN ACT TO ESTABLISH A COMMISSION, TO BE KNOWN AS AN COIMISIÚN CHUN DROCHÚSÁID LEANAÍA FHIOSRÚ, OR, IN THE ENGLISH LANGUAGE, THE COMMISSION TO INQUIRE INTO CHILD ABUSE, TO INVESTIGATE CHILD ABUSE IN INSTITUTIONS IN THE STATE, TO ENABLE PERSONS WHO HAVE SUFFERED SUCH ABUSE TO GIVE EVIDENCE TO COMMITTEES OF THE COMMISSION, TO PROVIDE FOR THE PREPARATION AND PUBLICATION OF A REPORT BY THE COMMISSION CONTAINING THE RESULTS OF ITS INVESTIGATION AND ANY RECOMMENDATIONS IT CONSIDERS APPROPRIATE FOR THE PREVENTION OF CHILD ABUSE, THE PROTECTION OF CHILDREN FROM IT AND THE ACTIONS TO BE TAKEN TO ADDRESS ANY CONTINUING EFFECTS OF CHILD ABUSE ON THOSE WHO HAVE SUFFERED IT AND TO PROVIDE FOR RELATED MATTERS.
Section 1, subsection 1, provides as follows:

1. – (1) In this Act, unless the context otherwise requires-
“abuse”, in relation to a child, means-
(a) the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child,
(b) the use of the child by a person for sexual arousal or sexual gratification of that person or another person,
(c) failure to care for the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare, or
(d) any other act or omission towards the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare,
and cognate words shall be construed accordingly;
“Commission” means the Commission to Inquire into Child Abuse established by section 3;
“Committee” means, as the context may require, the Confidential Committee or the Investigation Committee or both of them;
“Confidential Committee” means the Committee of the Commission established by section 10 (1) (a);
“Institution” includes a school, an industrial school, a reformatory school, an orphanage, a hospital, a children’s home and any other place where children are cared for other than as members of their families;
“Investigation Committee” means the Committee of the Commission established by section (1) (b);
“Minister” means the Minister for Education and Science;
“Relevant period” means the period from and including the year 1940 or such earlier year as the Commission may determine to and including the year 1999 and such later period (if any) as the Commission may determine.
(2) References in this Act to abuse of children in institutions or which occurred in institutions include references to any case in which abuse of a child took place, not in an institution, but while the child was residing or being cared for in, or attending, an institution and the abuse was committed or aided, abetted, counselled or procured by, or otherwise contributed to by an act or omission of, a person engaged in the management, administration, operation, supervision or regulation of the institution or a person otherwise employed in or associated with the institution.
(3) References in this Act to the management, administration, operation, supervision and regulation of institutions include references to such management, administration, operation, supervision or regulation effected, supervised, funded or regulated, in whole or in part, by a Department of State, a vocational education committee established by the Vocational Education Act, 1930, a health board, a local authority for the purposes of the Local Government Act, 1941, or any other public body.
Section (4) (1) provides for the functions of the Commission as follows;

4.—(1) The principal functions of the Commission are, subject to the provisions of this Act—
(a) to provide, for persons who have suffered abuse in childhood in institutions during the relevant period, an opportunity to recount the abuse, and make submissions, to a Committee,
(b) through a Committee—

(i) to inquire into the abuse of children in institutions during the relevant period,
(ii) where it is satisfied that such abuse has occurred, to determine the causes, nature, circumstances and extent of such abuse, and
(iii) without prejudice to the generality of any of the foregoing, to determine the extent to which—
(I) the institutions themselves in which such abuse occurred,
(II) the systems of management, administration, operation, supervision, inspection and regulation of such institutions, and
(III) the manner in which those functions were performed by the persons or bodies in whom they were vested, contributed to the occurrence or incidence of such abuse,
and
(c) to prepare and publish reports pursuant to section 5.
(3) The Commission shall have all such powers as are necessary or expedient for the performance of its functions.
(5) The Commission may invite and receive oral or written submissions.
(6) In performing their functions the Commission and the Committees shall bear in mind the need of persons who have suffered abuse in childhood to recount to others such abuse, their difficulties in so doing and the potential beneficial effect on them of so doing and, accordingly, the Commission and the Committees shall endeavour to ensure that meetings of the Committees at which evidence is being given are conducted—
(a) so as to afford to persons who have suffered such abuse in institutions during the relevant period an opportunity to recount in full the abuse suffered by them in an atmosphere that is as sympathetic to, and as understanding of, them as is compatible with the rights of others and the requirements of justice, and
(b) as informally as is possible in the circumstances.
5.—(1) The Commission shall, having had regard to the reports under sections 13 and 16, prepare a report in writing in relation to the matters referred to in section 4(1)(b) (“the report”) and shall specify in it the determinations made by the Commission pursuant to that provision.
THE PARTIES
The two named plaintiffs are the provincial leaders of St. Helen’s Province and St. Mary’s Province of the Congregation of Christian Brothers. The reality in this case is that the proceedings are brought by the Congregation of Christian Brothers through these named plaintiffs.

The first named defendant, the Commission to Inquire into Child Abuse, is colloquially known as the Laffoy Commission. It shall be referred to throughout this judgment, as it was in the proceedings, as the Commission. It was initially set up on a non-statutory basis in May, 1999, but was placed on a statutory footing in April, 2000, under the Act. The second named defendant, the Minister for Education and Science, is joined in the proceedings as the Minister charged with responsibility for the Act. However, it is acknowledged in the proceedings (although not specifically stated), that the Minister for Education also has an interest in the proceedings as a potential respondent, as a person or body in whom the functions being examined by the Commission were vested. The third named defendant is Ireland. The fourth named defendant is the legal person charged with upholding the provisions of Bunreacht na hÉireann, and counsel for the plaintiff stated from the outset that if it is held by this court that the Commission, or its Investigation Committee is correct in its ruling (sought to be impugned in these proceedings by the plaintiffs), then the legislation is unconstitutional. It was further explained that the constitutionality of the legislation thus only arises as a sort of final resort in the proceedings. It is for the purpose of pursuing this constitutional challenge to the Act (as it arises), that the Attorney General is joined.

EVENTS LEADING UP TO THE ACTION HEREIN
The events leading up to the action herein may be best described drawing on the final ruling of the Investigation Committee dated the 18th October, 2002.

The Investigation Committee had been set up by the Commission under the Act and proceeded to investigate the allegations of two complainants. The allegation of the first complainant was that as a child during the 1950s, she suffered abuse, within the meaning of that term in the Act, in a residential institution, which was managed by a congregation of religious sisters and was subject to statutory regulation by the Minister for Education.

The allegation of the second complainant was that during the late 1950s as a child, he suffered abuse within the meaning of the Act in a non-residential institution, which was managed by a congregation of religious brothers (now acknowledged to be the Congregation of Christian Brothers) and was subject to regulation by the Minister for Education.

Difficulties were posed by the religious sisters and the Christian Brothers in relation to their ability to meet the allegations and complaints in these cases.

In the case of the religious sisters it was stated that a member of the congregation of sisters, who was involved in the management of the institution during part of the relevant period and whom the complainant implicates in the allegations, is dead. Another member of the congregation who was involved in the management of the institution during the remainder of the relevant period is alive, but is elderly.

The difficulty posed by the Christian Brothers in relation to meeting the complaint in their case was that a member of the congregation, who was working in the institution, whom the complainant alleges perpetrated the abuse, is dead, as is the principal of the institution. The hearing of the allegations against the two different congregations commenced and proceeded for a number of days in each case. The issues raised in the case of the complaint against the congregation of sisters as to the power of the Committee to publish findings of abuse are:

1. identifying a person who is deceased or an institution based on an allegation that children were abused by that person in that institution; and
2. identifying a living person or an institution based on an allegation that children were abused by that person in that institution in circumstances which, by reason of lapse of time since the events complained of, the person is gravely hampered in his ability to defend himself against the allegation made.
In the case of the hearing of the complaint against the Christian Brothers their legal representative raised issues as to:-

1. representation for and on behalf of the deceased person against whom the allegation was made;
2. prejudice arising by reason of lapse of time between the date of the alleged incident and the date of intended adjudication, including (inter alia) the death of that person, and
3. the entitlement of the Committee to make a finding of fact as against a deceased person and the right of the Commission to publish such finding and the right to name any such person in the public domain.
The Committee decided that as the issues raised in the allegations of the two complainants in each case were likely to recur in relation to many, perhaps even the majority, of the allegations being investigated by the Committee, it was decided that, in order to avoid repetition and in the interests of consistency, the Committee should attempt to formulate general principles in relation to issues of the type raised to be applied on a “case by case” basis. A procedural hearing was held in camera on the 3rd July, 2002, to hear submissions from the legal representatives of the parties involved in the proceedings on the allegations of the two complainants in each case, as to the process by which this might be achieved. The Committee decided that a procedural hearing would be held in public, commencing on the 26th July, 2002, to hear submissions on the issues set out in the issue paper (the Issue Paper) presented by the Committee’s legal team, the terms of which were agreed by legal representatives for all the parties. The public hearing was held from the 26th July to the 31st July, 2002. After submissions and oral submissions were made by the legal representatives for the following parties who had been granted representation in the following order, which was agreed between the parties and the Committee’s legal team, namely:-

the Congregation of Sisters (the first management respondent)
the Christian Brothers (the second management respondent)
the first complainant against the first management respondent
the second complainant against the second management respondent
the Minister for Education and Science
the Attorney General representing the public interest
The Committee’s counsel also made submissions.

The summary of the submissions of the parties to this procedural hearing and the issues which emerged are set out in paras. 2.2 to 2.6 inclusive of the final ruling. The Committee decided that the Committee should issue a provisional ruling on the issues only, following the procedural hearing, because, apart from the parties who were represented at the procedure who have legitimate interests in relation to the issues, others might wish to make submissions on the issues before the finalisation of the ruling. A provisional ruling was published on the 9th September, 2002. In it an invitation was issued to any party on record with the Committee, who was not represented at the procedural hearing, to make submissions in writing on the provisional ruling, such submissions to arrive not later than 5 p.m. on Friday the 4th October, 2002. It was stated that such submissions would be considered before a final ruling would issue, and, if necessary, the parties who were represented at the procedural hearing would be invited to submit written comments on any submission which the Committee proposes to incorporate into its final ruling.

The submissions received following the publication of the provisional ruling were detailed and addressed in Section 10 of the final ruling. Following the publication of the final date for submission of statements from Complainants of 30th June, 2002, the Committee had received approximately, 1200 statements from Complainants by this deadline. Receipt of these statements enabled the Committee to get an overview of the work that lay ahead of it and, following an announcement in the provisional ruling (which incorporates much of the final ruling), the Committee set about revising its procedures and to that end published a framework document.

This framework document dealt with modularisation pre-hearing procedures such as preliminary investigations, procedural matters relating to discovery and other evidence, books of documents, preliminary hearings, evidential hearings, evidence of elderly complainants and respondents, a special public hearing in relation to memory, costs of legal representation and other matters. This framework document itself was published in November, 2002 and was to be subject to further revision depending on submissions which might be made in relation to it by the 5th December, 2002. These proceedings are not concerned with such further submissions but the framework document itself was sought to be made of relevance by the plaintiffs in their submissions and the defendants referred to it in various ways in their submissions also.

THE FINAL RULING
The final ruling (after reviewing the controversies which prompted the provisional ruling) proceeds to deal with the submissions of the two management respondents who were the prime movers in relation to the deliberations resulting in the provisional ruling and set out in detail in the relevant part of the Act relating to the final ruling. The final ruling sets out in paragraph 3.11 the understanding of the Commission in relation to the role of the Investigation Committee:-

“3.11 As the provisions of the Act dealing with the functions and powers of the Confidential Committee and, in particular, the words to which emphasis has to be added in paragraphs 3.4 and 3.5 above indicate, the intention of the legislature is that persons who avail of the opportunity to give evidence to the Confidential Committee do so in confidence and, by contrast with persons who choose to testify to this Committee, on the basis that their allegations are not inquired into. It follows that findings of a general nature only may be based on the evidence received by the Confidential Committee and those findings may only be reported on in general terms in such a way that neither a person making an allegation nor an institution against whom an allegation is made may be identified, directly or indirectly. By contrast, this Committee as the words to which emphasis has been added in paragraphs 3.7 and 3.8 above indicate, is required to inquire, to make determinations and, in particular, to make the determinations in relation to institutions, systems, and the performance of functions by persons and bodies. The reporting function comprehends the totality of the inquiring function: it is to report of the results on the inquiry, including the determinations made in the course of the inquiry. It is clear that the legislature intended that this Committee would conduct an inquiry of the type usually conducted by a Commission of Inquiry, or Tribunal of Inquiry set up to examine matters of grave public concern and that it equipped this Committee with the powers to carry out such inquiry. It is also clear that the legislature intended the report of this Committee to record what happened and, to adopt the terminology used in another jurisdiction (citing in the footnote Canada (Attorney Genera) v Canada (Commission of Inquiry on the Blood System) [1997] 3 SCRS.C.R.440 per Corry J. – Supreme Court of Canada), identify the “causes and players”. The legislature clearly envisaged that, as a general proposition, unlike the report of the Confidential Committee, the report of this Committee would not merely record findings of a general nature or determination framed in general terms.”

The final ruling proceeds in section 4 to deal with factual matters, mainly relating to the age profile and details of complaints of alleged abuse, made by the substantial number of complainants who had made complaints to the Commission before the deadline. The final ruling explains that these facts were set out because the Investigation Committee considered that it should approach the issues under consideration by it against the current factual reality of the inquiry it is conducting and the following two later paragraphs of the section give a particular flavour of the factual pattern which was emerging and which is particularly relevant to the plaintiffs’ case:-

“4.4 Counsel for the second Management Respondent disclosed that it is estimated that in excess of 30% of the complaints to which the Congregation she represents will have to respond (believed to be in excess of seven hundred) include an allegation of sexual abuse. She emphasised the difficulty inherent in making a determination where the allegation is of sexual abuse involving private acts between two persons, particularly where the person against whom the allegation is made is dead.
4.5 As has already been made public, the types of institution which predominate in the requests to testify to the Investigating Committee are industrial and reformatory schools. Most of those schools closed more than thirty years ago.”
Section 5 of the final ruling deals with the principles governing interpretation and the implementation of the Act. It deals with the concerns of the management respondent and proceeds on the basis of the presumption of constitutionality of the Act. It sets out that the Committee must adhere to fair procedures but asserted that there is no rule of law which requires the Committee to apply rules of evidence applicable in a court of law. The Committee in making findings will;

i. Apply the standard of proof applicable in civil proceedings in a court, that is to say, proof on the balance of probabilities, and

ii. The findings will be based only on evidence which would be admissible in a court, so that, in making findings, this Committee shall not rely on hearsay.

Section 6 of the final ruling sets out the Committee’s view of the proper interpretation of the sections 12 and 13 of the Act dealing with the functions of the Investigation Committee and the report that be made consequent to the exercise of the functions. It is with much of the detail of the views of the Committee set out in this section that the plaintiffs take issue in these proceedings and the section following in this judgment dealing with pleadings addresses these concerns further.

Section 7 of the final ruling deals with fair procedures and audi alteram partem. The section recognises that in the context of an inquiry, such as the statutory inquiry which the Committee is mandated to conduct, which it is empowered to make and to publicise findings, a person involved in the process whose conduct is impugned as part of the investigation must be afforded a reasonable means of defending himself. Minimum protection to be afforded to such persons is outlined, and references made to the rules of procedure of the Committee published on the 20th July, 2000, is made. Such rules of procedure provide that the respondent is entitled to:-

a. A statement of the allegations made against him.

b. Cross-examine persons giving evidence against him.

c. Testify himself, and

d. Make submissions.

It was confirmed that religious congregations which have management responsibility at the relevant time for an institution in which it is alleged that abuse occurred were given a right to be represented at the Committee, while the Committee at the same time expressed no view on the former occurrence structure or legal status of that congregation. It was recognised that the members or the congregations of religious which come within the remit of this Committee are perceived in the State as having a distinct charism and mission and a distinct reputation which adheres to the members of the congregation.

Several matters referred to in this section are in dispute in this case.

LAPSE OF TIME PREJUDICE
Section 8 acknowledges that the question of prejudice arising to the persons or bodies being investigated by reason of the lapse of time is likely to be a serious problem in the work of the Committee. The section recognises the jurisprudence of the courts in relation to such determinations as may be made to halt proceedings or an inquiry against a named individual. However, it is with the application of such jurisprudence to the practicalities of the investigation of the Committee that the plaintiffs take issue.

THE SUMMARY OF CONCLUSIONS ON ISSUES
Section 9 of the final ruling deals with the summary of conclusions on the issues raised and these conclusions are, in the main, disputed in the pleadings. Section 10 relates to submissions on the provisional ruling (of which sections 1 – 9, inclusive, of the final ruling form part). The outcome of the consideration of the submissions was to leave the text of the provisional ruling intact and thus it has become part of the final ruling and the plaintiffs take issue with some comments in this section. Section 10 deals with review of procedures and it is here that the proposal to publish a framework document setting out the procedures (already referred to) to be published on the 31st October, 2002, for further submissions.

REQUEST FOR REFERRAL UNDER SECTION 25 OF THE ACT
On the 8th October, 2002, the Committee received a request from a religious congregation, not the plaintiffs, for an oral hearing to renew its application to consider referral of the issues of prejudice caused by lapse of time, loss of witnesses, dead respondents and related matters and/or the provisional ruling itself to the High Court pursuant to Section 25 of the Act. The text of the letter of request is set out in Appendix B of the final ruling. The final ruling refuses such request.

THE PLEADINGS
The Statement of Claim delivered on 21st February, 2003 sets out in paragraphs 1 to 6 inclusive the descriptions and capacities of the parties which has been sufficiently described in this judgment under the heading “the parties”. Paragraph 7 claims that the functions of the Commission are set forth in s. 4 of the Act which provides that through a committee the Commission will inquire into child abuse during the relevant period. The statement of claim continues as follows:-

8. The definition of “abuse” for the purposes of the Act is extensive and is to be found at Section 1 of the Act. The more extreme acts deemed to constitute abuse include the use of a child for sexual gratification or the infliction of physical injury on a child. Of less severity, but also included in the definition of abuse, are acts or omissions such as may result in serious adverse effects on a child’s behaviour or welfare. Further, the abuse to be inquired into under the Act extends not only to abuse of children within institutions but also includes the abuse of a child which took place, not in the institution, but whilst the child was residing or being cared for in, or attending, an institution and the abuse was committed or aided, abetted, counselled or procured by, or otherwise contributed to by an act or omission of, a person engaged in the management, administration, operation, supervision or regulation of the institution or a person otherwise employed in or associated with the institution.
9. There are two Committees established under the Act namely the Confidential Committee and the Investigation Committee.
10. The functions of the Confidential Committee are set forth of section 15 of the Act which provides that persons who have suffered abuse in childhood and who do not wish to have that abuse inquired into, may recount such abuse and make submissions in confidence to that Committee. The Confidential Committee may make findings of a general nature and will prepare and furnish a report/reports to the Commission. Such report/reports shall not contain findings in relation to particular instances of abuse and shall not identify persons alleged to have suffered abuse or persons alleged to have committed abuse or indeed any institutions or any other persons.
11. Section 12 of the Act provides (inter alia) that the Investigation Committee will hear evidence from persons who allege they were abused in childhood. The Committee is also to inquire into the causes, nature and circumstances and extent of any such abuse and further, may determine the extent to which the Institutions themselves, the management of such Institutions or third parties and whom such functions may have been best if responsible or contributed to the occurrence of such abuse.
12. Section 13 of the Act sets out the reporting functions of the Investigation Committee. This section affords to the Investigation Committee a wide discretion regarding the content of its report/reports. Even where the Investigation Committee is satisfied that abuse of children took place, the Committee has a complete discretion as to the extent of the findings it decides to include in its report and has equivalent discretion as to whether or not it makes findings against persons such as Managers of the institutions concerned or whether it identifies those involved as perpetrators or those vested with responsibility for the management of the institution in which the abuse was found to have occurred. The Investigation Committee is specifically precluded from setting out in its report any findings in relation to particular instances of alleged abuse of children.
13. By reason of the extensive powers vested in the Investigation Committee in particular by virtue of Sections 12 and 13 of the Act, the Commission advised, at the time of its first public sitting on the 29th of June 2000, that the Investigation Committee was required to give every person who, and every institution or other body which might be the subject of a conclusion which would adversely reflect on him/her or it the opportunity to defend himself, herself or itself.
14. In its opening statement the Commissions reported that the Investigation Committee would conduct in its Inquiry in two phases. The first phase would involve the Investigation Committee investigating particular allegations of abuse. Such individual allegations of abuse were to be heard in private and the Investigation Committee, if satisfied that the abuse occurred, was to make a finding to that effect which would be recorded in an interim report from the Investigation Committee to the Commission, such finding being final and not open to challenge in the second phase.
15. The Commission further advised that the Investigation Committee would then move on to phase 2 and that this second phase would have two components. The first component would involve investigating, in relation to each institution, the context in which abuse occurred, why it had occurred and the attribution of responsibility for it, whether institutional or regulatory. This phase of the Investigation Committee’s work would be conducted though public hearings. In the other component, the Investigation Committee was to look at the broader picture – the legislative framework and the historical and social context in which the abuse occurred.
16. The final report of the Investigation Committee was to be based on the totality of the evidence available to it. An outline of the procedures which the Investigation Committee proposed to adopt in relation to the first phase and the public hearing component of the second phase of the Inquiry was contained in Appendix D to the opening statement.
17. Section of the Act provides that the Commission, having considered the reports (including interim reports) of both the Investigation Committee and the Confidential Committee, will prepare its own report and may, if satisfied that abuse of children occurred during a particular period, contain findings to that effect and may identify the institution and the persons who committed the abuse. Further, the report of the Commission itself may contain findings in relation to the management, administration, operation, supervision etc., of an institution and may identify the persons concerned. However, the report must not identify or contain information that could lead to the identification of a person the subject matter of abuse in childhood and neither is it to contain findings in relation to particular incidences of alleged abuse of children. It is also the case that the Commission can make general findings arising from the report of the Confidential Committee but must, if it does so, state in its report that any such findings are based on evidence that was not tested or challenged by any person and was not corroborated.
18. Since the Ruling of the Investigation Committee of the 18th of October 2002 which Ruling is the subject matter of these Proceedings, the Commission has produced a new framework document entirely altering the method whereby it intends to hear/investigate abuse in the relevant institutions. It is believed that the concerns which are hereinafter referred to and arise by reason of a lapse of time between the date of the alleged instances of abuse ad the potential determination as to whether or not such abuse took place are even greater having regard to the modular approach referred to in the new framework document. Whilst the Plaintiffs in these Proceedings are concerned principally with the Ruling of the Investigation Committee dated the 18th day of October 2002, the Plaintiffs contend that the Committee’s expressed intention to aggregate evidence transforms the legal principles applicable to the evaluation of evidence and stems from a misinterpretation of the Act as requiring that finding not be made in relation to each individual complaint but rather on a generalised basis.
19. There are now approximately some 700 allegations of abuse pending against present, former or deceased members of the Congregation. The Committee has granted collective representation in the Proceedings before the Committee to any Religious Congregation which had a management responsibility at the relevant time for an institution in which it is alleged any particular abuse occurred. The Committee has also recognised that the Congregation of the Christian Brothers is a Congregation which is perceived in the State as having a distinct charism and mission and that it has a distinct reputation which adheres to its members. Accordingly, where an institution is under investigation by the Investigation Committee, whether or not past or present members are also under investigation, the Committee, as recognised the process is potentially injurious to the reputation of the Congregation and the reputations of the current members of the Congregation. For this reason, the Committee has considered it appropriate that a Congregation of religious should be afforded protection analogous to the protection afforded to a living person against whom allegations are made which are likely to reflect on that person’s good name.
20. Of the approximate 700 allegations of abuse referred to above, many of the persons against whom allegations of abuse have been made are dead, untraceable, elderly, infirm or unable to give instructions. In relation to many other allegations of abuse, lapse of time has severely prejudiced those against whom allegations have been made and their ability to defend themselves against such allegations.
21. Against the backdrop of the aforementioned difficulties, the Investigation Committee found itself inquiring into an allegation made by a Complainant that, during the late 1950’s as a child, he suffered abuse within the meaning of the Act in a non-residential institution, namely the North Monastery Christian Brothers School. The member of the Congregation against whom the Complainant makes his complaint of abuse is dead as is the then Manager of the institution.
22. In consequences of the listing for Hearing of the complaint referred to in the last preceding paragraph, the legal representatives of the Member of the Congregation against whom the Complainant makes his Complaint are also the legal representatives of the First and Second Named Plaintiffs raised a number of issues with the Investigation Committee, namely:-
(a) how the Committee was proposing to deal with the issue of representation for deceased persons against whom allegations of abuse had been made;
(b) how the Committee was proposing to deal with prejudice arising by reason of lapse of time between the date of the alleged abuse complained of and the date of the intended adjudication, including (inter alia) how the Committee would deal with matters such as the doctrine of audi alteram partem, the death of the person the subject matter of an allegation and/or the death of such person’s contemporaries including the Managers and/or principals of the school in which the abuse was alleged to have taken place;
(c) the entitlement of the Investigation Committee, in the circumstances, to make or report findings of fact against deceased persons and the right of the Commission to publish such finding in its report or otherwise bring such findings into the public domain.
23. In circumstances where the alleged issues were likely to arise in relation to many of the allegations being investigated by the Investigation Committee a request was made to the Investigation Committee that it would seek directions from the High Court pursuant to Section 25 of the Act regarding how it should deal with such issues both in the context of the holding of Inquiries by the Investigation Committee and the reporting function of both the Investigation Committee and the Commission proper. Notwithstanding the fact that a request in similar terms was made to the Investigation Committee by another Congregation of Religious members, the said request that the matter be referred to the High Court for directions was duly rejected. The Investigation Committee duly convened a Public hearing for the purposes of receiving submissions from those affected by the issues referred to at paragraph 23 above.
24. In circumstances where the alleged issues were likely to arise in relation to may of the allegations being investigated by the Investigation Committee a request was made to the Investigation Committee that it would seek directions from the High Court pursuant to Section 25 of the Act regarding how it should deal with such issues both in the context of the holding of Inquiries by the Investigation Committee and the reporting function of both the Investigation Committee and the Commission proper. Notwithstanding the fact that a request in similar terms was made to the Investigation Committee by another Congregation of Religious Members, the said request that the matter be referred to the High Court for directions was duly rejected. The Investigation Committee duly convened a Public Hearing for the purposes of receiving submissions from those affected by the issues referred to at paragraph 23 above.
Paragraph 24 of the statement of claim of refers to the procedural hearing which was held between the 26th and the 31st July, 2002, as it was described in the description of events leading up to action above.

Paragraph 25 sets out the areas of broad agreement, that the work of the Committee was an adjudicative inquiry as described by the Supreme Court, that it was required to comply with the doctrine of audi alterem partem and that this overlapped to some extent with issues of prejudice arising from lapse of time, and that the case law and jurisprudence of the Superior Courts as to the effect and implications of lapse of time in civil and criminal proceedings was as stated in the written submissions made on behalf of the two Religious Congregations represented at the hearing.

Paragraphs 26 and 27 set out the progression from preliminary ruling issued on the 9th September, 2002 to final ruling delivered on the 28th October, 2002, and states that the said ruling (which is the final ruling) for ease of reference is annexed to the statement of claim. The importance of such annexation becomes clear further on in the statement of claim.

Paragraph 28 refers to the rejection of the request for a section 25 reference of the matters at issue in the provisional ruling. The statement of claim proceeds as follows:

29. The Plaintiff herein contends that the Investigation Committee in its final Ruling has incorrectly interpreted the provisions of the Act. Further, the Plaintiffs believe that the general principles set out in the said final Ruling offend the principles of natural and constitutional justice. Further, if the Ruling is fully implemented, the Plaintiffs herein contend that such implementation will amount to a breach of the requirement by the Investigation Committee that it implement procedures which are fair.
30. The Investigation Committee at Clause 2.9 of its final Ruling indicated that “the principles adopted in the final Ruling will guide the future Proceedings of this Committee but, where the interest of fairness so dictate, will not be applied to a particular decision or determination”.
31. In circumstances where the Investigation Committee has not concluded any Inquiry into any allegation of abuse made as against those represented by the Plaintiffs sought an assurance from the Investigation Committee that no point would be taken in these proceedings contending for their prematurity by reason of the aforementioned circumstances.
32. By letter dated the 25th day of November, 2002, (received 28th January, 2003) the Investigation Committee indicated its agreement in principle to take no point in respect of the prematurity of any proceedings arising from the said ruling.
33. The plaintiff contends that the Investigation Committee has by reason of the content of its ruling dated the 18th of October, 2002, manifested an intention to operate procedures which are unfair and contrary to the principles of natural and constitutional justice.
34. For the purposes of expediting the within proceedings, the ruling of the Investigation Committee is annexed to this Statement of Claim. Further in ease of the defendants and which the sole purpose of seeking to avoid any delay in these proceedings arising by virtue of any notice seeking particulars, the plaintiffs herein have underlined in red those portions of the said ruling which they contend inter alia are wrong in law and/or are contrary to natural and/or constitutional justice and/or in breach of the Commission’s obligations to regulate its procedures and business in a fair and proper manner.
35. If this honourable court should determine that the ruling of the Investigation Committee regarding its statutory functions and its interpretation of the applicability of the rules of natural and constitutional justice to its functions are correct it is the plaintiff’s contention that the said Act and in particular the provisions thereof which mandate the Commission to make and report findings of abuse against (a) deceased persons, (b) those respondents who are to infirm to be in a position to give instruction, (c) those named respondents who cannot be located or (d) persons otherwise prejudiced in their ability to defend themselves against allegations of abuse and those provisions which purport to allow the Investigation Committee to aggregate evidence and make general findings without making a finding in relation to each individual complaint, are unconstitutional. In particular, the said legislation offends Articles 40.1, 40.3.1 and 40.3.2 of Bunreacht na hEireann.”
And the plaintiffs claim in the endorsement of claim of the plenary summons issued on 13th day of February, 2003, as follows:

“(a) A declaration that the interpretation by the Investigation Committee of the Commission to Inquire into Child Abuse of its statutory functions, as provided for in the Commission to Inquire into Child Abuse Act, 2000, as set forth in its ruling of the 18th day of October, 2002, is wrong in law.
(b) A declaration that the ruling of the Investigation Committee of the Commission to Inquire into Child Abuse dated the 18th day of October, 2002 insofar as it sets out to the general principles to be applied by the Investigation Committee or the Commission itself in the exercise of its statutory obligations offends the principles of natural and constitutional justice.
(c) A declaration that the Ruling of the Investigation Committee of that Commission to Inquire into child abuse of the 18th of October, 2002, insofar as it refers to its statutory mandate or the general principles which it intends to apply in relation to allegations of abuse against persons who are dead, untraceable, under a disability, or unable to give instructions arises from an erroneous interpretation of its powers and obligations as provided for by the Commission to Inquire into Child Abuse Act, 2000.
(d) A Declaration that the Ruling of the Investigation committee of the Commission to Inquire into Child Abuse dated the 18th of October 2002, regarding the general principles which it intends to apply when dealing with the issue of prejudice arising by virtue of lapse of time, if implemented, would infringe the principles of natural and constitutional justice and further would infringe the right of any person against whom an allegation of abuse had been made and/or the rights of any manager, congregation or third party affected by the making of such a finding to procedures which are fair, just and constitutional.
(e) A declaration that in carrying out its inquiring functions and further when making determinations in accordance with its powers as provided for in Section 12 of the Commission to Inquire into Child Abuse Act, 2000, that the Investigation Committee is mandated to apply the jurisprudence of the Superior Courts in relation to prejudice arising by virtue of lapse of time notwithstanding the provisions of the Commission to Inquire into Child Abuse Act, 2000, that such inquiry is to be in respect of the period from 1940 to 1999, or earlier or later at the Commissions discretion.
(f) A declaration that in carrying out its reporting function pursuant to Section 13 of the Commission to Inquire into Child Abuse Act, 2000, that the Investigation Committee is mandated to apply the jurisprudence of the Superior Courts in relation to prejudice arising by virtue of lapse of time notwithstanding the provisions of the Commission to Inquire into Child Abuse Act, 2000 that such inquiry is to be in respect of the period from 1940 – 1999, or earlier or later at the Commission’s discretion.
(g) In the alternative, should the court declare that the Investigation Committee’s interpretation of the provisions of the Commission to Inquire into Child Abuse Act, 2000 is correct in law and that the general principles by which such Committee intends to be guided are in conformity with the said legislation and its provisions are unconstitutional and in particular are offensive to Articles 40.1, 40.3.1 and 40.3.2 thereof.
(h) Such further or other Order as to this Honourable Court may seem fit including, if necessary, an Injunction restraining the Investigation Committee in proceedings with any oral hearings wherein a present or past member of the Congregation of the Christian Brothers is alleged to have been guilty of abuse. (This claim has not been proceeded with and finally costs are claimed, in (i)).”
I do not propose to set out the underlined parts of the final ruling but they shall be referred to as necessary in dealing with the submissions and consideration of the case below.

THE DEFENCES

The defence of the first named defendant (the Commission) contains the appropriate denials and admissions of a factual matrix to set up the issues arsing on a straight denial of the plaintiffs’ entitlement to the declarations sought and in paragraph 30 the first named defendant pleads:-

“Without prejudice to the foregoing, to the entitlement of this defendant to elaborate upon its legal submissions at the hearing hereof and to the right of the first named defendant to be provided with, and to respond to particulars of the allegations referred to at paragraphs 34 and 35 of the Statement of Claim, the first named defendant shall contend at the hearing hereof that the decision referred to therein was lawful, made within its jurisdiction, properly construed the provisions of the Act, respected the right of natural and constitutional justice of persons involved in its inquiries and was intra vires its powers.”
THE STATE DEFENDANTS’ NOTICE FOR PARTICULARS

It is important to set out the notice for particulars delivered by the other defendants, dated 29th April, 2003, and the replies thereto insofar as they elaborate in substance and detail the claims made in the statement of claim. The reply sets out the short queries and reprise as follows:-

“Request for particulars:

1. Please provide full and detailed particulars of the specific provisions of the Commission to inquire into Child Abuse Act 2000, that are alleged to be unconstitutional and the alleged reason for same.
1. Replies to particulars:
1.1 The legal submissions filed on behalf of the plaintiffs dated the 10 April 2003 as directed by the President of the High Court already describe in outline the constitutional challenge to the final Ruling of the Investigation Committee dated 18 October 2002 (“Final Ruling”). This was issued following the procedural hearing held in public on the 26, 29, 30 and 31 July 2002. The Final Ruling does not recite any provision of the Commission to Inquire into Child Abuse Act 2000 (“the 2000 Act”) relied upon in making the Final Ruling.
1.2 The nature of the Final Ruling as a form of delegated procedural ruling under the 2000 Act is without precedent in the format of the delegated legislation made. It does mot state that it is a standing order made in exercise of statutory powers. Section 11 (4) of the 2000 Act, subject to the provisions of the Act, states that the Commission to Inquire into Child Abuse (“the Commission”) “…shall regulate, by standing orders or otherwise, the procedure and business of a Committee.”
1.3 In the absence of any specific statutory provision in the 2000 Act or otherwise recited in the Final Ruling as the provenance or source of authority thereof, the best efforts of the plaintiffs to furnish the particulars requested refer to provisions of the 2000 Act which, on their face, give certain discretions to the Investigation Committee to make those aspects of the Final Ruling challenged in these proceedings. Without prejudice to these replies, if necessary, the plaintiffs challenge the entire of the 2000 Act to the extent that certain unspecified statutory provisions arise relied upon by either of the defendants to uphold the validity of those parts of the Final Ruling objected to by the plaintiffs.
1.4 As a consequence of the decision adopted by the Commission in the making of the Final Ruling, those particulars of the said Ruling to which challenge is raised and are underlined in red in the relevant appendix to the statement of claim delivered herein deal with the legal issues that arise in the following factual matrixes:
(i) Applying retrospectively a penal statutory regime under the 2000 Act to deceased named members of the Congregation who are dead and beyond the reach of the criminal law.
(ii) Applying retrospectively a penal statutory regime under the 2000 Act to named members of the Congregation who are unable to give instructions as a consequence of advanced age, senility or other category of disability recognised in the law.
(iii) Applying retrospectively a penal statutory regime under the 2000 Act to named members of the Congregation who are prejudiced by the extreme delay of a nature otherwise recognised in the law.
(iv) Applying retrospectively a penal regime under the 2000 Act to named members of the Congregation who cannot be traced or located and are otherwise beyond the reach of the criminal law.
1.5 The plaintiffs also challenge the test adopted by the first named defendant in the Final Ruling concerning the matters complained of in these proceedings to the following effect:-
“Therefore, a test predicated on risk is not appropriate. It is the view of this Committee [the first named defendant] that the correct test is whether it is unsafe to make the determination.”

Final Ruling, paragraph 8.6; p.50.

The plaintiffs challenge the said test in the within proceedings and the above text should be taken as thus highlighted and underlined in red in the appendix annexed to the statement for claim. The test submitted by the plaintiffs is that adumbrated by the Supreme Court in Dunne v. Director of Public Prosecutions [2002] 2 ILRM 241, 255 that the correct test is whether or not there is a real risk that the applicant will not receive a fair trial and already referred to in the plaintiffs’ legal submissions dated 10 April, 2003, paragraph 99, p.53.

1.6 Subject to the aforesaid, the following statutory provisions are challenged:
(i) Commission to Inquire into Child Abuse Act 2000, s.1(1) and s.4(1)(a) and the definition of “relevant period” to mean the period from and including the year 1940 or such earlier year as the Commission may determine.
(ii) Commission to Inquire into Child Abuse Act 2000, s.11(4) and the competence of the Commission to regulate by standing orders or otherwise the procedure and business of the Investigation Committee.
(This claim was subsequently abandoned after some argument at the hearing).
(iii) Commission to Inquire into Child Abuse Act 2000, s.12 dealing with the functions of the Investigation Committee and the manner challenged in these proceedings.
(iv) Commission to Inquire into Child Abuse Act 2000, ss. 13 to 14 dealing further with the report and powers of the Investigation Committee.
(v) Commission to Inquire into Child Abuse Act 2000, the entire Act, to the extent that other provisions are relied upon by either of the defendants to sustain and uphold those parts of the Final Ruling challenged in these proceedings.
(This claim was subsequently abandoned after some argument at the hearing).
1.7 Such further particulars as may be furnished when the legal submissions of the first named defendant and the legal submissions of the second, third and fourth named defendants are known and the statutory or other provisions relied upon particularised.
Request for particulars:
2. Please provide full and detailed particulars of the Articles of Bunreacht na hÉireann that have allegedly been infringed by the Commission to Inquire into Child Abuse Act 2000.
2. Replies to particulars:
2.1 Statement of Claim, paragraph 35, referring to Constitution of Ireland, Article 40.1, Article 40.3.1° and Article 40.3.2°.
2.2 Constitution of Ireland, Article 6 and Article 15.5.

The principle of the separation of powers as further provided for in Article 6 of the Constitution is relied upon in the challenge made to the 2000 Act as amounting in substance to a Bill of Attainder/Bill of pains and penalties.

The constitutional prohibition of retroactive penal legislation in Article 15.5 including the general leaning of the courts against injurious retrospection.

The Commission to inquire into Child Abuse Act 2000, in respect of the matters complained of in these proceedings, offends against the prohibition of Bills of Attainder and Bills of pains and penalties. The 2000 Act applies in respect of the matters complained of herein as a Bill of pains and penalties.

2.3 Constitution of Ireland, Article 40.1.
The equal protection clause and the guarantee of equal laws is breached by the 2000 Act.

The legislation in issue also infringes the constitutional prohibition against a Bill of Attainder and a Bill of pains and penalties.

2.4 Constitution of Ireland, Article 40.3.1° and 2°.
The 2000 Act breaches the constitutional right to basic fairness of procedures.
The plaintiffs are manifestly disadvantaged in the attempted investigation of the dead, the disabled, the unallocated and the disadvantaged. The right of cross-examination is further circumscribed apart altogether from the impossibility of taking instructions therefore.

2.5 The plaintiffs’ legal submissions dated the 10 April 2003 further particularise the complaints made in these proceedings.
2.6 Such further particulars as may be furnished when the legal submissions of the first named defendant and the legal submissions of the second, third and fourth named defendants are known and the statutory or other provisions relied upon particularised.”
DEFENCE OF THE STATE DEFENDANTS

The defence of the State defendants sets out in paragraph 1 that the plaintiffs are not entitled to the relief claimed. The defence goes on as follows:-

“1. The Second, Third and Fourth Named Defendants (hereinafter referred to as “the State Defendants”) deny that Plaintiffs are entitled to the relief claimed or any relief.

2. The State Defendants admit paragraphs 1 – 11, 13 – 17, 24, 27 and 30 of the Statement of Claim.

3. The State Defendants are strangers to the matters pleaded at paragraphs 19, 21, 22, 23, 26, 28, 31, 32 and 33 of the Statement of Claim.

4. The State Defendants deny that where the Investigation Committee is satisfied that abuse of a child took place, the Committee has a complete discretion as to the extent of the findings it decides to include in its report. The State Defendants plead that the report and findings of the Investigation Committee is limited to the results of that committee’s inquiry as provided for in Section 12 of the Commission to Inquire into Child Abuse Act, 2000, (hereinafter referred to as “the Act”) and paragraph 12 of the Statement of Claim is denied insofar as it is inconsistent with the provisions of the Act.

5. The State Defendants admit that the powers of the Investigation Committee set out in section 13 of the Act are discretionary rather than mandatory and that the Commission and/or the Investigation Committee are therefore given wide scope as to the adoption of appropriate procedures to be applied in each individual case.

6. The State Defendants deny that since the ruling of the Investigation Committee of the 18th October 2002, the Commission has produced a new framework document entirely altering the method whereby it intends to hear/investigate abuse and the relevant institutions. The State Defendants are strangers to the belief of the Plaintiffs that the concerns raised in the Statement of Claim are even greater having regard to the modular approach referred to in the Commission’s new framework document. The State Defendants deny that the Investigation Committee’s alleged expressed intention to aggregate evidence transforms the legal principles applicable to the evaluation of evidence and stems from a misinterpretation of the Act as requiring that finding not be made in relation to each individual complaint but rather on a generalised basis.

7. The State Defendants are strangers to the plea contained at paragraph 20 of the Statement of Claim that many of the persons against whom allegations of abuse have been made are dead, untraceable, elderly, infirm or unable to give instructions. The State Defendants deny that in relation to the aforementioned persons and in relation to may other allegations of abuse, lapse of time has severely prejudiced those against whom allegations have been made and their ability to defend themselves against such allegations, either as alleged or at all.

8. The State Defendants plead that lapse of time in itself is not a reason for the Investigation Committee of the Commission not to investigate the matters before it. The State Defendants plead that lapse of time coupled with absence of key witnesses or other evidence is a matter for the Investigation Committee to measure and consider before deciding that it can make a proper conclusion concerning allegations of abuse on the part of individuals or institutions who may be identified under the Act.

9. The State Defendants plead that the absence of relevant witnesses or the age of witnesses to provide rebuttal evidence on behalf of any members of the Plaintiffs’ congregation does not in itself mean that the Inquiry ought not to receive the evidence from various complainants and go on to reach conclusions. In the premises, the Commission and/or the Investigation Committee is required to investigate the matters put before it including determining whether or not there has been abuse.

10. The State Defendants are strangers to the broad agreement as pleaded at paragraph 25 of the Statement of Claim that may have existed between the Investigation Committee and the Plaintiffs at the public hearing of the Investigation Committee.

11. The State Defendants deny that the Investigation Committee in its final ruling has incorrectly interpreted the provisions of the Act. Further, the State Defendants deny that the general principle set out in the final ruling of the Investigation Committee offends the principles of natural and constitutional justice. Further, the State Defendants deny that if the ruling is fully implemented that such implementation will amount to a breach of the requirement by the Investigation Committee that it implement procedures which are fair.

12. The State Defendants deny that those portions of the Investigation Committee’s ruling which are underlined in red are wrong in law and are contrary to natural and/or constitutional justice and/or in breach of the Commission’s obligations to regulate its procedures and business in a fair and proper manner is denied as if same were herein set out and traversed seriatim.

13. The State Defendants rely upon Section 13 of the Act which provides that the report of the Investigation Committee may also identify the Institution and person who committed abuse. In the premises, the State Defendants plead that pursuant to Section 12 of the Act there is no obligation on the Investigation Committee to name and identify any person. The State Defendants plead that the requirements of constitutional justice can be adequately met by the Investigation Committee in the carrying out of its functions under Section 13 of the Act and that this must be so presumed by this Honourable Court.

14. The State Defendants deny that the Act and in particular the provisions thereof which mandate the Commission to make and report findings of abuse against;

a. deceased persons,
b. those Respondents who are too infirm to be in a position to give instructions,
c. those named Respondents who cannot be located or
d. persons otherwise prejudiced in their ability to defend themselves against allegations of abuse and those provisions which purport to allow the Investigation Committee to aggregate evidence and make general findings without making a finding in relation to each individual complaint,
are unconstitutional. Each and every particular of unconstitutionality of the Act and, in particular, breach of Articles 40.1, 40.3.1 and 40.3.2
15. The State Defendants plead that the reaching of a valid and fair conclusion that abuse took place does not necessitate cross-examination and rebutting evidence by persons who may possibly be affected by such a conclusion.

16. The State Defendants accept that there may be cases where delay and absence of witnesses and material prevents a fair opportunity for rebuttal of allegations of abuse against a living individual, by the Commission and/or the publication of the identity of a person or persons against whom an allegation of abuse is made.

17. The State Defendants plead that the Act enjoys the presumption of constitutionality and should be interpreted so by this Honourable Court. The State Defendants plead that the Act was put in place by the Oireachtas in recognition of public disquiet arising from allegations of child abuse in institutions of childcare within the State over a period of years.

18. Further or in the alternative, the State Defendants plead that the Plaintiffs’ claim is both premature and hypothetical.

19. The State Defendants plead that the right to one’s good name has been vindicated by the discretionary nature of the reporting and fact finding powers vested in the Investigation Committee and/or the Commission and the duty to follow fair procedures.

20. The State Defendants plead that the Act is a proportionate, objective and rational response to matters of public concern, requiring the investigation of child abuse in institutions in the State.

21. The State Defendants plead that deceased members of the Plaintiffs’ congregation are not entitled to the protection of personal rights relating, inter alia, to good name and character, and that there is no absolute barrier to investigating and/or publishing findings against dead persons.

22. The decision challenged in these proceedings is lawful and valid and was made within jurisdiction and respects and vindicates constitutional rights.”

THE EVIDENCE
The second named plaintiff, Brother David Gibson, gave evidence on behalf of the plaintiffs. He is the province leader of St. Mary’s Province of the Christian Brothers of Ireland. This is the northern province set up in 1956 and the other province in the island of Ireland is St. Helen’s. The division was an imaginary line from Dublin to Galway and in Dublin and the rest of the island north of the Liffey and north of the line was St. Mary’s province. The witness joined the Christian brothers in 1965. The witness worked as a teacher for some while in Ireland before transferring to studying and teaching in Rome. He was superior in the Christian Brothers Community in Rome from 1985 until 1990, when he was asked to come back to take part in the leadership team of St. Mary’s Province, which he did for six years. Subsequently he was deputy province leader from 1996 to 2002 and then in 2002 he was asked to be permanent leader of St. Mary’s Province, and, accepted, and remains in this position. The leadership team of which he was a member prior to becoming involved as deputy and province leader, consisted of a province leader and four counsel members or team members. The role of this leadership team is to administer the welfare of the province, care for the various schools in the province and to take care also of the brothers and staff of the various institutions and schools. The witness was actively involved in the management and administration of the plaintiff’s response and cooperation with the Commission with regard to St. Mary’s Province.

The plaintiffs have a number of institutions involved with the Commission. Three specifically important institutions under the remit of the Commission are St. Mary’s Province, St. Joseph Salthill, St. Joseph’s Letterfrack and Artane Dublin. The Christian Brothers were also involved in St. Vincent’s Glasnevin Orphanage, the O’Brien Institute, and also the Cabra School for the Deaf. These six institutions were the ones with which the witness was concerned when dealing with the Commission.

With regard to the aetiology of the allegations against these institutions the witness said that a lot of allegations go back anything up to 70 years. Just taking Artane as one of the principal institutions the witness thought that there were something like 339 allegations against brothers, and former brothers, living or deceased, and they go back from pupils who were alive in the 1920’s. The witness estimated that there were sixteen brothers against whom allegations were made about young boys who were in the institution in the 1920’s. The bulk of the allegations seem to converge around the 1940’s and 1950’s. The witnesses said that it was a huge job and requires and an enormous amount of time and resources to deal with this set of allegations.

Dealing with the handling of the interface between the Commission and St. Mary’s Province, the witness said that the plaintiffs receive a complaint from the Commission together with all the material relating thereto. The first thing he has to do is to examine the nature of the complaint. This takes quite a lot of time. They first of all examine the file on the brother who was accused. That involves looking up the biographical details of the brother to prove that he was there, because in some cases the plaintiffs can prove that he was not in the place as alleged. And the plaintiffs look at the archive of material which would be accumulated with regard to that brother and see are there any letters or any details that would indicate that there was concern 50, 60 or 70 years ago.

The examination of the complaint on the plaintiffs’ side continues by examination of admission files, the infirmary reports, the Department of Education reports on the school and on the pupil, and any other material that would be relevant. The witness gives an instance of a significant amount of material being in the visitation reports that are related to Artane for example. He explained in relation to such visitation reports that each year a brother from headquarters – over the 60 or 70 year period that the witness was talking about – would have visited Artane every year and would have drawn up a report. He explained that it would have been a highly critical report, often more critical then, say, the Department of Education report, but it would be very detailed and the plaintiffs would examine those.

Dealing with the management structure of Artane, as an example, the witness said that such an institution would have a resident manager who was normally the superior of the community there at the time. That was the main structure of management. Such superior had a sub-superior, and then in each community there is what is known as a council – a small group of people who used to meet on a regular basis, from the community of the school. The resident manager, the sub-superior and one or two finally professed brothers would be on that so-called council. So this effectively was the management group. It was more an informal thing than an official thing.

As regards the present position of those in such management or quasi management positions, the witness said that all the resident managers are dead.

There are three principals alive as far as the witness knew, still in their 70s, who had been principals in Artane. Two are brothers and one is a former brother. That would be the extent of the survivorship of management from that period.

Of those in a position equivalent to the witness in terms of management, none of the province leaders who were involved in those institutions are alive, and there is one member of a leadership team in his eighties now in bad health who, at the very end, when Artane was closing, was a junior member of the leadership team at that time. The congregation finds that they have brothers who perhaps spent two years or three in Artane, during which time there was never a complaint against them. They left Artane and taught for perhaps for 35 to 40 years in schools outside Artane, and during the 35 to 40 years outside Artane there was never a complaint against them. Now in the last year and a half the congregation are getting complaints of serious sexual abuse, against a large number of brothers who were in Artane for a short period of time and perhaps for a longer period. These serious allegations are limited to the time they were in Artane. No other complaints against them during the time they taught outside Artane have been made, and they are in a position now where they are saying “it didn’t happen”.

The witness said that the congregation has no documentary evidence on its files that expressed any concern about these brothers, many of whom became superiors, became province leaders, or whatever. Now at this stage of their lives they are being accused of the most serious sexual crimes, and they are saying there is no truth or foundation in them. The witness considered that this makes it very difficult for them and a lot of them are suffering a lot as a result.

The approach towards these complaints by the congregation now is that it examines every aspect of it and it looks to see is there any foundation from its point of view. If there is anything that would seem to point that there is any truth in the complaint there is a congregational response to that. At the moment the congregation is engaged in this process for a considerable number of people who are alive. These people themselves of course will have their own response independent of the congregation. The witness referred to what he considered was the extraordinarily damaging effect on the brothers personally. A lot of them have had to get counselling for depression and anxiety. For quite a number of them there is great reluctance to actually be involved now in any form of ministry where there are young people, even though up to the time of the complaint they would have been quite active and busy and concerned with the ministry of education although retired. As a result there is a severe burden on the congregation and the leadership teams to ensure the health and welfare of these brothers. The witness gave evidence of the details of the problems affecting complaints arising from Artane which he said closed in 1969, the main building whereof is now used as a secondary school, and much of the building and physical layout has been demolished or significantly altered. The result is that there would be no similarity between Artane as we know it today and the Artane as it was in the 40s, 50s and 60s.

He repeated his general comments in relation to trying to deal with complaints against brothers who it appeared had lived exemplary lives of dedication and generosity and described the problem statistically as follows: there would be 85 brothers who are deceased who taught in Artane. There are about 32 living brothers who are in Artane, who taught in Artane and are living now. There are about 75 former brothers, who were brothers teaching in Artane, who left the congregation. Some of the brothers who left the congregation are now dead and there are no details of others because they do not all maintain contact with members of the Congregation. Apart from the brothers who are alive and traced, the witness described the following three categories which presented problems in relation to getting instructions

1. Those who are not traced
2. Those who are infirm. The brothers cannot deal with those for the purpose of responding to the Commission often because of their memory lapse, their age or they are too fragile to bring the complaints in great detail to them, and they generally can not respond because they often cannot remember very much about their whole experience.
3. Deceased brothers who obviously cannot instruct the congregation.
In respect of these categories the evidence was that the congregation cannot really respond to the complaints except to say that from the point of view of the congregation they have no material on their files against them.

As regards the effect on the families of the brothers alive and dead the witness said that the congregation has experienced the naming of some deceased brothers in the media in relation to very serious allegations of abuse and that this has had a traumatic effect on the families of these deceased brothers who held them in high regard. Much as the witness would not want to link immediate results from this cause, he noted at the same time that there had been two suicides in two cases of families whose relations were mentioned in this context as brothers in the tabloid papers. This experience also had a terrible effect on the brothers in the communities of the congregation.

Under cross examination the witness clarified that as of 1978 or thereabouts the main school building would have been the same as it was during the pre-Artane closure period. The changes occurred in relation to many of the other structures fairly soon after 1969 and the brothers house was demolished about six or seven years ago. There are 32 brothers living from the Artane period not all of whom have allegations made against them. Of the 32 about 3 or 4 present difficulties in getting proper instructions from them because of their age or other infirmity. So far, the working of the Commission has turned up a number of complaints of which those from the 1940s and 1950s would be the main ones. Most of the accusations made in respect of Artane would be in excess of 50 years old. The vast majority of brothers who were in Artane would have some form of complaint against them and these complaints range from the extremely serious, in the nature of accusations of serious sexual abuse, through accusations of very serious physical abuse, to perhaps nonetheless serious, but not as serious complaints about other forms of neglect and the like. The witness could not give a break down in exact terms but was inclined to think from his experience that more than 50 per cent of complaints in regard to Artane were sexual abuse claims. He stated that there were other complaints, of course, in relation to lack of proper care and so on. Asked if these latter complaints in relation to proper care etc. were in the nature of complaints that the system as a whole did not properly care for the persons who were there the witness responded with a view there was a very mistaken image of Artane, which would purport to say that the children were starved, that the education was very poor, when in fact the contrary was true and that the congregation would have very clear evidence of that. He agreed that Artane represents a significant proportion of the total complaints made against the congregation not only in the province but in the island of Ireland as a whole. He said that in general terms the residential institutions of the congregation are the principal focus of the complaints which have been received by the Commission while at the same time there are some isolated complaints dealing with ordinary schools and other matters. Of the 700 or so complaints, about 50 relate to non residential schools and other places and these tend to be in ones and twos in respect of each individual school and neither is there any great pattern to them.

Thus the main thrust of the accusation against the congregation is directed towards abuse that is alleged to have occurred in residential institutions. By and large most of these residential institutions closed around the same time as Artane in the late 60s and early 70s. So that the majority of the complaints in relation to these institutions centre around 50 years ago and certainly no less than 35. While there are some accusations relating to more recent times in relation to individual schools, they are not a huge number in the overall scheme of complaints facing the congregation.

JUDICIAL NOTICE RE: LOSS OF MEMORY
By agreement of the parties the Court took judicial notice of the general proposition that memory of events diminishes with the passage of time and the ageing process.

THE PLAINTIFFS’ SUBMISSIONS

The starting point of the plaintiffs’ submission was directed from the dictum of Geoghegan J. in Maguire v. Ardagh [2002] 1 IR 385, at 740:-

“It is well established by the cited cases that in respect of any kind of Tribunal or Inquiry body, as to what is or is not fair procedures may vary depending on the nature of the matters being investigated”.
The procedure of the Investigation Committee will ultimately lead to a name and shame process, the findings in certain instances will be the type of findings of criminal wrongdoing that are normally made only by a jury in a criminal case or a judge in a civil case. This process, the plaintiff submitted, will take place against a background where the findings of fact will be published, that the alleged wrongdoer will not be in a position to take the most basic preliminary steps in any adjudication in certain instances and where the Committee has wide powers of compulsion and the respondent has no right either to silence or to invoke the privilege against self incrimination, where the Committee’s finding as a fact enjoy absolute privilege and cannot be challenged in any legal forum, in certain circumstances where information provided to the Investigation Committee must be disclosed to the Gardaí, and where no clear right to cross-examine exists.

The plaintiff submitted that the scale of the problem is apparent from paragraph 4.2 of the Final Ruling of the where it stated:-

“This Committee is aware…that many of the persons against whom complainants have made allegations are dead, as are persons who, at the relevant time, were involved in the management of or were working in institutions in respect of which allegations are made. Moreover this Committee is aware that certain persons against whom allegations are made, while still alive, are, as this Committee has accepted, incapable of giving instructions to respond to an allegation or of testifying.”
ISSUE OF PREMATURITY OF PROCEEDINGS

The plaintiff relied on the judgments of Keane C.J., Geoghegan J. and McGuinness J. in Maguire v. Ardagh [2002] 1 IR 385 and in the judgment of Ó Caoimh J. in Borges v. The Fitness to Practice Committee of the Medical Council Unreported High Court 5th March, 2003, as authority for the proposition that the plaintiffs are now entitled to challenge the ruling of the Investigation Committee in these proceedings contrary to what is claimed by paragraph 18 of the defence of the second, third and fourth named defendants.

In relation to the plaintiffs’ submission regarding the general nature of the proceedings before the Investigation Committee the plaintiffs submitted that the case Canada (Attorney General v. Canada (Commission of Inquiry on the Blood System) [1997] 3 S.C.R. 440 sets out limits to the role of an inquiry. The following specific passages of the judgment of Cory J. were relied on as follows at pp. 458 to 459:-

“The inquiry’s roles of investigation and of education of the public are of great importance. Yet those rules should not be fulfilled at the expense of the denial of the rights of those being investigated. The need for careful balancing was recognised by Dècary J.A. when he stated at paragraph 32
“The search for the truth does not excuse the violation of the rights of the individuals being investigated.”
This means that no matter how important the work of an inquiry may be, it cannot be achieved at the expense of the fundamental right of each citizen to be treated fairly.”
And at p. 470 when Cory J. stated that:-

“Findings of misconduct should not be the principal focus of this kind of public inquiry. Rather, they should be made only in those circumstances where they are required to carry out the mandate of the inquiry. A public inquiry was never intended to be used as a means of finding criminal or civil liability. No matter how carefully the hearings are conducted they cannot provide the evidentiary or procedural safeguards which prevail at the trial.”
And further in the judgment at page 471 when Cory J. also observed:-

“…procedural fairness is essential for the findings of commissions may damage the reputation of a witness. For most, a good reputation is their most highly prized attribute. It follows that it is essential that procedural fairness must be demonstrated in the hearings of the commission.”
It was accepted by the plaintiff that during the course of ordinary litigation in the courts a deceased person may have their reputation damaged by something that is said in evidence. However it was submitted that what is proposed by the Investigation Committee here is something very different. It is a statutory investigation which will, as one of its primary purposes, make specific findings a fact into a large number of persons who are deceased, disabled or disadvantaged. Relying on the judgment in Maguire v. Ardagh and the fact that the findings of the Commission and statements in the report thereof were privileged meant that the findings of the investigation far from being legally sterile could ruin a person simply by exposure and condemnation as much as by conviction.

THE INTERPRETATION OF SECTIONS 12 AND 13 OF THE ACT

It is accepted on behalf of the plaintiff that the Act, being a post 1937 piece of legislation, enjoys a presumption of constitutionality. It was submitted however that this should not act as a licence for the Committee to do whatever it pleases but as a restraint. In developing this proposition the plaintiffs relied on the following case law: Loftus v. Attorney General [1979] I.R. 221, Goodman International v. Hamilton [1992] 2 I.R. 542, Haughey v. Moriarty [1999] 3 IR 1 and McMahon v. Leahy [1984] I.R. 525. Applying the cases cited above it was submitted on behalf of the plaintiffs that they were “made” in relation to the power of the Investigation Committee to identify the Institution and the person who committed the abuse should be interpreted as only permitting identification in circumstances were such identification is not inconsistent with the constitutional rights of the individual or institution in question.

It was accepted that the alleged victims of abuse have legitimate interests, but this cannot be allowed to “trump” the fundamental constitutional rights of others. In all cases where a criminal prosecution is stayed, the victim could be said to be deprived of an opportunity to have his or her allegation tried in court. So too, in the case of applying the Statute of Limitations and/or laches to a civil case, in complying with what the plaintiffs submitted is a constitutional interpretation of the section, the discretion to identify the dead, disabled, unlocated or disadvantaged should not be exercised, and such failure to exercise the discretion is not the same as saying that one does not believe the complainant. The plaintiffs submitted that it was simply recognition that there can be no reality to making a pretence of an adjudication, or purporting to make a final finding of fact.

It was submitted that to reconstruct every aspect of life in a particular institution over a period of many years is of necessity, a very complex task particularly when one takes into account the diverse number of factors that can effect human memory, such as the age of the complainant when the abuse occurred, their age when it is recounted and the lapse of time, these very real difficulties mean that extreme caution should be exercised when undertaking the task of reconstructing life in an institution some 50 years ago. It was submitted that the existence of a respondent who was dead, disabled, unlocated or disadvantaged means that this caution should transform into a refusal to make a finding of fact. It was submitted that the work of the Committee and the Commission could proceed even if these categories of persons living and deceased were not individually identified, and the reports of the Inquiry into matters relating to the visit of the President of China to New Zealand in 1999 and the Victoria Colombie Inquiry in England in 2002 were cited as examples where inquiries proceeded in such circumstances.

THE RELEVANCE OF THE NON-STATUTORY COMMISSION

The plaintiff submitted that as the Commission had in its prior non-statutory form advised the Government on, and had a role in drafting of the Act they had on the basis of McConnell v. United Kingdom …2000) 30 EHRR 289 and Procola v. Luxembourg (1995) 22 E.H.R.R. 193 prejudiced their impartiality.

In submitting that a high standard of fair procedures is required even in the context of a body exercising inquisitorial functions, the plaintiffs relied on Borges v. The Fitness to Practice Committee of the Medical Counsel and Commission to Inquire into Child Abuse v. Notice Party A. (Unreported, High Court, 9th October, 2002) citing p. 26 of the judgment of Kelly J. as follows:-

“The interest of justice and a patently fair hearing to both complainant and respondent is of the essence of the work of the applicant. There can be no question of sacrificing the requirement of a patently fair hearing in favour of sympathy for a complainant or for the creation of an atmosphere. To do so would not be justified …”
FAIR PROCEDURES. DECEASED PERSONS

The plaintiffs introduce their submissions by referring to paragraph 7.10 of the ruling of the Investigation Committee where it stated:-

“It is not accepted that the making and publication of finding against a deceased person should in principle be the exception rather than the norm.”
The plaintiffs submit that it is clear from this that the Investigation Committee intends to make the findings of fact of abuse in respect of scores if not hundreds of persons who are deceased.

It was further submitted that the naming and shaming should only follow in circumstances where there has been an adjudication based on a testing of evidence. If, due to the death of the proposed respondent, the evidence cannot be tested in an adjudicative manner, a conclusion cannot be formed. To hear only one side of the case quite simply does not comply with fair procedures. There must be a real forensic analysis of the evidence. This cannot occur where the respondent is not in a position to give the most basic piece of information at all namely his admission or denial in respect of the charges. To proceed to a final adjudication of fact in respect of, for example, a sexual assault alleged against a person in circumstances where that person cannot even enter a denial of responsibility is utterly unfair.

It was further submitted that where a respondent is dead there is, of course, no possibility whatsoever of that person’s case being presented in the manner consistent with the requirements described In Re: Haughey [1971] I.R. 217. The accuser cannot be meaningfully cross-examined in the absence of information and instructions from the dead person. Rebutting evidence cannot be given because the person is no longer available to authorise the giving or give the rebutting evidence. Permitting a legal representative to address the Committee becomes meaningless in the absence of a person from whom to obtain information and take instructions. The inquiry becomes a one sided procedure in which the voice of the accuser is heard but the voice of the accused is not. It was submitted that the concept of adjudication becomes completely meaningless in such a situation.

It was submitted that in cases where the respondent is dead, the Committee will essentially be making an assessment as to whether or not it believes the complainant. It may be the case that a finding can be made based on belief alone in the course of a person’s job e.g. as a psychologist. In fact, in order to do some jobs, it is perhaps, necessary to believe what you are being told. But the question that arises is whether a statutory body can purport to make a final adjudication of fact based merely on its belief that the complainant is telling the truth in circumstances where such evidence has not been tested by also hearing the evidence of the respondent, it is submitted that the answer must be no.

In this context it was submitted that it should be recalled that the Committee has wide powers of compulsion (see s. 14) and it is a criminal offence to refuse to comply with the direction of the Committee (s. 14(4). In addition a respondent has no right to silence or to invoke the privilege against self incrimination (s. 21). It was submitted that it can be deduced that the purpose of such provisions was to make sure that the Committee would not find itself in a position where it was only hearing one side of the story. The plaintiff cited Mahon v. Air New Zealand [1984] 3 All ER 201 in which it was held that the Tribunal making a finding in the exercise of an investigative jurisdiction is required to base its decision on evidence that has some probative value, in the sense that there has been some material that tended logically to show the existence of facts consistent with the finding and that that the reasoning supporting the finding, if disclosed, is not logically self contradictory.

The view of the former Chief Justice Finlay, in the Report of the Tribunal of Inquiry into The Blood Transfusion Service Board published in 1997, was that it was not appropriate to make adverse findings against a dead man. He stated:-

“Quite obviously Dr. Wilkinson as the Deputy National Director [of the BTSB], must also be considered to have responsibility but it is particularly difficult to quantify that or to compare it with the responsibility of others having regard to his death, and because of the potential injustice that would arise from blaming a person who had never had an opportunity of defending himself.”
THE CONSTITUTIONAL RIGHTS OF THE DECEASED

In making their submissions in relation to the claimed constitutional rights of the deceased the plaintiffs contrasted the status of a finding of guilt of rape against a person who lived just long enough to defend the allegation before the Committee, and a finding against another member of the same institution who is accused of rape but who has died two decades before the allegation was heard against him. In both cases this will lead to a finding also being made against the institution but the plaintiffs submit that in reality each finding of fact has a totally different quality. The first was made after the person who was accused had an opportunity to present his case. The second was made without the person who was accused being able to present their case. Yet both findings will appear side by side in the report of the Investigation Committee and will be viewed by the public as though they had equal weight. The submission proceeded – “This is what is so invidious about what is proposed.”

Accepting that there was not an exclusive domestic authority on whether deceased person possess any constitutional rights the plaintiffs referred the court to the following cases which at least left open or supported their views

Hilliard v. Penfield Enterprises Limited [1990] 1 I.R. 138, McDonald v. Brady (Supreme Court) [2001] 3 IR 588 and two cases decided by the European Court of Human Rights, Kelly and Ors. v. United Kingdom, Unreported E.C.H.R. 4th May, 2001, and Osman v. United Kingdom [1999] 29 E.H.R.R. 245 and in a decision of the English High Court in R (on the application of Wright) v. Secretary State for the Home Department [2001] 62 B.M.L.R. 16.

The plaintiffs accepted that it was well known that the estate of a dead person cannot sue for libel but asserted that there were good public policy reasons for such a rule but asserted that this limitation should not relate to the question as to whether a dead person whose dead name is attacked by the State can raise constitutional arguments in their defence. It is argued that whereas defamation generally relates to statements made by private persons or bodies, the findings of a public investigative body will be regarded in a different light by the public. Because of the way in which the Commission has been set up, its findings will be taken as being the truth. Thus it was argued that there is simply no comparison to be made between the law of defamation and the rights that are sought to be protected in the present case.

It was finally submitted that the Committee is under a continuing duty to act fairly and in accordance with the Constitution even in circumstances where a respondent is deceased. In any event the rights of all the surviving members of the congregation continue in force even after the death of one of its members. Submissions went on to discuss in more detail the rights of the surviving members.

THE RIGHTS OF THE SURVIVING MEMBERS
It was submitted that the untested and untestable allegation of abuse would become a slur on each of the living members of the congregation if a finding is made against a deceased member and published as a final and solemn finding of fact. As set out in paragraph 19 of the statement of claim the Committee has recognised that the congregation of the Christian Brothers is a congregation which is perceived in the State as having a distinct charism and tradition and has a distinct reputation which adheres to its members. The recognition of these features of the congregations is to be found at paragraph 7.4 of the final ruling of the Investigation Committee. The authorities relied upon by the plaintiff for asserting the rights of surviving members to constitutional protection in respect of findings made against deceased members are as follows:

1. Hilliard v. Penfield Enterprises Limited [1990] 1 I.R. 138

2. X County Council v. A [1985] 1 All E.R. 53
3. The Commission to Inquire into Child Abuse v. Notice Party A. (Unreported, High Court, Kelly J., 9th October, 2002).
FAIR PROCEDURES INCAPACITATED OR UNTRACED PERSONS

The plaintiffs made submissions in relation to the fundamental disadvantages which would be suffered by the incapacitated or untraced persons and repeated that in respect of this and in respect of the deceased members it is of little assistance to them to permit their interests to be represented by the congregations’ own representative or by some other representation as referred to in paragraph 7.5 of the ruling of the Investigation Committee.

LAPSE OF TIME PREJUDICE

The plaintiffs relied on the extensive jurisprudence on the Irish Courts on delay in criminal and civil cases and set out their understanding of this jurisprudence. They specifically set out the attitude of the Investigation Committee as set out in paragraph 8.5. of the final ruling as follows:-

“The Committee rejects the submission that its procedures should provide for consideration of the issue of prejudice after taking a complainant’s evidence. The procedure consequence of this successful invitation of the “lapse of time” jurisprudence by part, usually the defendant, in a civil action, or the accused facing a criminal trial, is the making of an order to dismiss the civil action or prohibits the further prosecution of the criminal charges. While such a consequence is appropriate in an adversarial process, which is, in effect, a contest between two adversaries in which the substantive law determines the rules of engagement, for example, where the burden of proof lies, it is wholly incompatible with the nature of an inquisitorial process which is established by statute to investigate facts.”
They asserted that the standard to be used was that which was set down by the Supreme Court in Dunne v. DPP [2002] 2 IR 305, “that there is a real risk that the applicant would not receive a fair trial”. They argued that the law is that the applicant does not have to prove that the dead witness would definitely have provided a defence for her. The mere possibility the dead witness might provide a defence might be enough to persuade a court that the trial should be stopped as happened in the People (DPP) v. Quilligan and O’Reilly (No. 3) [1993] 2 I.R. 305. The plaintiff’s written submission continues as follows:-

“…It is in this context that paragraph 7.10 of the ruling of the Investigation Committee falls to be considered. It is stated that
“The evaluation or assessment process which precedes a determination or finding is not dependent on there being accounts of the incident or state of affairs on which the allegation is based from two or more components to weigh in the balance.”
What the Committee seems to be saying in is where A is alleged to have raped B over a period of time, a determination that A is guilty of rape may be made despite the fact that A is dead, simply by testing the evidence of B against such other evidence as is available. It is submitted that this is not the case. The non availability of witnesses or documentation or buildings or structures due to the lapse of time will mean that in many cases the Committee will be making a final determination as to whether abuse occurred based upon little more than a “swearing match” between a complainant and a respondent. In such circumstances it would be unfair to proceed to make such an adjudication. The plaintiffs’ complaint that while initially the Investigation Committee intended to investigate complaints on an individual basis they moved in the framework document to indicate that the complaints would be investigated on an modular basis. Therefore it would only be at the end of the investigation of a large number of cases in respect of an institution that the issue of prejudice arising from delay is to be considered if at all.

The plaintiffs refer to the case law on delay in criminal cases and how that delay might lead to proceedings being halted by way of prohibition or injunction as a result of that delay – B. v. D.P.P. [1997] 3 I.R. 140, J.O’ C v. D.P.P. [2000] 3 I.R. 478, P.O’ C. v. D.P.P. [2000] 3 I.R. 87, J.L. v. D.P.P. [2000] 3 I.R. 122.

The plaintiffs’ also refer to the House of Commons Home Affairs Committee Report on the conduct of investigations into past cases of abuse in children’s homes paragraph 592 and 141. The plaintiffs set out what they regarded as the principle case law on delay on the civil side as follows:-

“O’Domhnaill v. Merrick [1984] 1 I.R. 151, Toal v. Duignan (1) [1991] I.L.R.M. 135, Primor v. Stokes Kennedy Crowley [1996] 2 I.R. 459, Ó Caoimh v. Commissioner of Public Works, Unreported, Supreme Court, 24th March, 1980.”
They referred to the standard to be met to insure the dismissal of proceedings for delay on the civil side is that there has been “a real and serious risk of an unfair trial.”

THE RELEVANCE TO THE CONFIDENTIAL COMMITTEE OF DELAY
The plaintiffs’ submissions drew the attention of the court to the provisions of the Act relating to the confidential committee which provides, in particular, in section 54 subsection 4 as follows:-

“If the report contains findings that are based on findings in a report of the Confidential Committee, the report shall include a statement to the effect that the first mentioned findings are based, solely or partly, as the case may be, on the latter findings and that the evidence on which the latter findings are based could not be tested or challenged by a person and (if it to be the case) was not corroborated.”
The aforementioned restrictions (which appeared to be equally applicable to live and dead respondents) clearly acknowledge that for any finding to be reliable it must be subjected to scrutiny and challenge. Further the restriction on the publication of the names of any of the alleged perpetrators are indeed in the institutions allegedly implicated in the report of the Confidential Committee as strong support for the proposition that the Investigation Committee must recognise the risks of making findings where there is no respondent to challenge allegations made, where there is a lack of corroborative evidence and/or other prejudice has occurred by reason of the passage of time. The plaintiffs emphasise in their oral submissions to the court that whereas it appeared to them that the Commission correctly set out the jurisprudence in relation to delay arising form the civil and criminal cases, the Commission did not apply this jurisprudence properly by committing to halt the investigation at such time as it could be ascertained that there was a real and serious risk of an unfair determination of the guilt of the respondents.

AGGREGATION OF EVIDENCE

The oral submissions placed great emphasis on the arguments against the statement of the Commission that the determinations in relation to the findings as to whether a respondent was guilty of abuse or not would be made having heard all the evidence in each module as set out in the framework document and the final ruling. This objection was based on the argument that aggregation of evidence was a concept unknown to Irish law and that both in criminal and civil law guilt found against a person in one set of circumstances does not imply guilt in other circumstances and the Court was referred to the manner in which applications for separate trials were made and the consideration of the courts in Ireland of system evidence in the overall context of similar facts. The plaintiffs argued that the so called aggregation could not provide corroboration where there was no corroboration in law.

CROSS-EXAMINATION BY RESPONDENTS

The plaintiffs referred to the rules of procedure the Final Ruling and framework document which they said appeared to provide that a precondition to the right of the respondent to cross-examine was the furnishing of a narrative statement by the respondent in relation to the allegations of the complainant in each case. They argued that such compliance by the respondents who were dead or were under the various kinds of disabilities referred to would be plainly impossible and thus were denied by the procedures proposed by the Commission a right to cross-examination as described in Re: Haughey and in Maguire v. Ardagh.

FIRST NAMED DEFENDANT’S SUBMISSIONS
From the outset, counsel for the first named defendant outlined the points of agreement between the first named defendant and the plaintiff as follows and it is helpful to set them out here:

(i) It is accepted that the complaints made by persons alleging abuse as defined in the Act are of a serious nature, which could, if the subject of determination by a criminal court, amount to criminal offences.
(ii) Further, it is accepted, insofar as living persons are concerned, be it the persons alleged to be responsible for any abuse determined, the manager of the institution or religious congregations concerned with its affairs the findings of the Commission are liable to adversely effect their reputations.
(iii) While determinations of the Commission or its Committees do not have any legal effect, it is accepted that this fact does not detract from the necessity to afford those involved in the process, the protections of constitutional and natural justice, and it is accepted that in this regard the process of the Investigation Committee is adjudicative in the sense in which that term is used in Maguire v. Ardagh.
(iv) Accordingly, it is accepted that persons liable to be the subject of adverse findings by the Commission (including congregations of those responsible for the institutions effected) have the right to the protection afforded by the principles of natural and constitutional justice in connection with the work of the Commission and the Investigation Committee.
(v) It is accepted that the content of those rights are defined by the decision of the Supreme Court in Re: Haughey.
It was submitted that in Maguire v. Ardagh the critical determination of the Supreme Court had two components. The first derived from the fact that the Court held that the joint Oireachtas sub-Committee in issue there did not have any power to conduct an inquiry of the nature undertaken by it. It was accepted by all the parties to the proceedings that it did not enjoy statutory power to conduct such an inquiry and it was accepted that it did not enjoy express constitutional power so to do. The sole question was whether it implied a constitutional authority derived from the powers of parliament so to hold an inquiry of the nature in question. The Supreme Court determined that it did not. What the court in Maguire v. Ardagh most definitely did not purport to do was to suggest that the gravity of findings liable to be made by an inquiry or the prospect of determinations being arrived at which might adjudicate facts which, if found in a criminal trial, would amount to a determination of criminal guilt, negated the entitlement to conduct such an inquiry, if otherwise authorised in law. It was submitted that the established jurisprudence of the court would have made any suggestion impossible and referred to Goodman v. Hamilton [1992] 2 I.R. 542.

It was submitted that none of the considerations moving the Supreme Court in Maguire v. Ardagh apply to the case of an inquiry conducted by the Commission or one of its committees which is plainly authorised by statute in a manner which in fact is more detailed and specific than the legislative authorisation for Tribunals of Inquiry.

1. It was claimed that a number of consequences follow the fact of specific statutory authorisation of the Commission, namely that while the courts no doubt could intervene in the case of excess by an inquiry of its statutory terms of reference the courts do not have a role in second guessing the decision of the Oireachtas to determine that a matter is the fit, proper or necessary subject of an inquiry, and that it is self evident that the Oireachtas could decide that issues of sexual abuse of children in institutions were proper matters for inquiry not least of all where the persons who suffer such abuse are alive, and still suffering the consequences of it.
2. The identification of parties guilty of abuse or the so called naming and shaming process is not the purpose of the process but it may be a necessary consequence of it.
3. The effect of s. 12 of the Act of 2000 is that the Oireachtas has specifically directed the Investigation Committee to address the questions of whether the abuse occurred in institutions between 1940 and 1999 and, if so, when it occurred, of what type, to what extent, why did it happen, where responsibility lies for the occurrence of such abuse, whether it lies with the institution and, if so, why. This is what the Commission is required by statute to do. This is not an objective which can be realised or achieved by the making of general findings of the nature suggested by the plaintiffs’ submissions. These are functions which define the mandatory obligation imposed by s. 13(1) of the Act of 2000 to make a report in writing of the results of the inquiry referred to in s. 12 specifying in the determinations made by it pursuant to that section. The first named defendant relied on paragraph 6.3 of the final ruling to support this argument.
4. There is no constitutional infirmity to an inquiry being called upon to consider allegations which, if established in a court of law, would amount to criminal conduct. And the dictum of Costello J. (as he then was) in Goodman v. Hamilton [1992] 2 I.R. 542, at p. 557 was referred to – “The decision to established a Tribunal of Inquiry into allegations of criminal misconduct does not constitute an interference with the exercise of judicial function in the criminal field.”
It was not agreed that the constraints being placed upon persons liable to be subject of adverse findings by the committee to cross-examine their accusers, such as were found in the Maguire v. Ardagh case, were present in the procedures of the Commission.

FINDINGS AGAINST DECEASED OR DISADVANTAGED PERSONS
It was not accepted that there was any principle prohibiting the inquiry being made into the activities of deceased persons or persons who are disadvantaged or otherwise unable to defend themselves against allegations. It was noted that one of the main protagonists in the inquiry carried out by the inspectors appointed to inquire into the affairs of Ansbacher (Cayman) Limited under the Companies Act, 1990 was deceased, and that the events being investigated commenced over 30 years ago and there were conclusions adverse to the deceased in that case. The ability of persons alleged to have done business with the company under investigation was evidently impaired by the exclusive knowledge of the deceased of their affairs, and the absence of records. His employers and entities associated with him were obviously adversely effected by the outcome of the investigation. Similar considerations apply to those aspects of the Tribunal of Inquiry (Payment to Politicians) which intersect with the matters inquired into with the inspectors. The defendant identified two arguments by the plaintiff insofar as death itself leading to the inability of the dead person to defend himself and delay reducing the inability of a person, dead or alive, to defend himself. Again public inquiries will take place because persons are dead and the reputation of such persons may be liable to come under scrutiny and adverse comment.

It was accepted that these practical considerations do not determine whether a given course of action and inquiry is unconstitutional. The duty to make the decision and finding must be faced up to but equally the Commission should consider if the decision in issue was unlawful or the provisions in the final ruling pursuant to which it was made contrary to the Constitution. The position of the first named defendant was set out as follows:

“If it is because of the passage of time, resulting dimming of recollections and under consequences of the period stipulated by the Oireachtas in relation to which the Commission was to inquire, then the arguments in relation to the right of deceased persons, the impact upon the congregations of the fact that their members were of subject of the deceased and thus not in a position to defend themselves are simply irrelevant. All that is in issue is whether the passage of time has caused a prejudice which precludes in any given case, the Commission from proceeding. This necessarily requires a case by case for consideration of the issue, and it is the case by case consideration which, necessarily, must proceed on the basis that instances in which an aspect of the inquiry will be precluded from proceeding will be the exception, rather than the rule.”
The analogy with court proceedings was used by the defendant to show that court proceedings may involve not merely something that is said in evidence at first to a deceased, but binding determinations of a court of law which are adverse to the deceased, with financial consequences for the survivors of the deceased. This, the first named defendant said, was the necessary and inevitable consequence of the fact that the law permits actions to be proceeded with against the estate of a deceased in respect of his or her legal wrongs, citing s. 8 of the Civil Liability Act 1961. In many, if not all such cases, those defending the proceedings are liable to be deprived of evidence, are liable to have a plaintiff pitched against them with a real practical advantage, and of course are in a situation which there is a prospect of the court arriving at a decision with significant adverse reputational consequences for the deceased. While the courts have never adjudicated upon the argument as advanced by the plaintiffs here, it is significant to note that even in considering their jurisdiction to dismiss for want of prosecution the courts have permitted actions to proceed after the passage of a lengthy period of time in circumstances where witness were dead or in which claims against third parties were claimed upon the actions of a person deceased, with consequentional implications for the reputation of that deceased person (citing the criminal case of J.O’ C v. D.P.P. [2000] 3 I.R. 478 and McCarthy v. South Infirmary (Unreported, High Court, Abbott J., 7th March, 2003).

THE DELAYED CASES

The rules applicable to the dismissal of court proceedings (civil and criminal) following a passage of time are simply inappropriate to the questions which were before the Commission in the decision under review. The principles applied in such cases in the courts have been developed in a context in which there is in train an adversarial process between two or more contesting parties. The function and obligation of the court charged with the hearing of such a case is to render a decision on the merits, based upon the evidence adduced by both parties. The principles governing the dismissal of actions consequent on delay are moulded by the nature of that process; they require the striking of a balance between the rights of the plaintiff or complainant to have his or her claim litigated, or prosecution pursued, and the right of a defendant to a fair and proper determination. The process of inquiry in which the Commission is engaged is different from the court proceedings and the operation from the legal principles arising where there has been delay must reflect this fact. The Commission’s inquiry occurs in a statutory framework which as mandated an inquiry. It has done so in a manner which leaves no room for doubt but that aspects, and proportionately significant aspects, of that process relate to matters which occurred many years ago. It is equipped to the Commission to discharge that task in a manner which renders it less dependant upon the evidence adduced by the parties, than would a court of law in an adversarial process. It is free to examine and probe the evidence of the complainants itself. It enables itself to gather, consider and rely upon evidence from external sources. It has, by reason of its composition, expertise in relation to the task entrusted to it. It is made clear its intention to ensure that the rights of persons who come before it will be adequately protected and considered the hearings as far as individuals are concerned take place in private. Finally, while it in no sense seeks to undermine the significance of the reputational interests which might be impaired by its determinations, those interests are necessarily different from the factors which a court must consider in the exercise of calculation which the determination of an application to dismiss consequent upon delay entails. In the circumstances they suggested an analogy of the Commission and of the position of a party to court proceedings is misplaced. The critical distinctions between the position of a party involved in legal proceedings in a court of law and a person subject of allegations within a Tribunal of Inquiry was recognised by Denham J. in Lawlor v. Flood [1999] 3 I.R. 107. The determination of the Commission does not result in criminal guilt or give rise to a civil liability, the deceased have no constitutional reputational rights and insofar as members of the congregation might be effected by a decision adverse to a deceased member or employee any reputational interests those persons have is by definition vicarious, and of necessity more remote than the interests of a person in their own reputation.

It is clearly stated on behalf of the Commission that the Commission is mandated to conduct the inquiry by the Act. It has no discretion but to conduct that inquiry and similarly has no discretion but to arrive at conclusions of the nature referred to in the Commission submissions. While the Commission is obliged to observe the principles of natural and constitutional justice, this does not mandate a general principle that allegations against persons who are deceased should not be proceeded deceased persons or might impact on the reputations of third parties. There is no such general principle identifiable in the jurisprudence of the courts dealing with delay. The jurisprudence of the courts developed by addressing the circumstances in which criminal and civil cases should be dismissed consequent upon the passage of time and cannot be applied directly to the proceedings of the Commission. Even the jurisdiction of the courts is reserved for exceptional cases and what is exceptional for the purposes of the Commission must be viewed in the light of the Commission’s inquisitorial role, the brief it has been given by the legislature and the particular facts of any case, and hence the Commission’s ruling, it was submitted cannot be said to be wrong in law.

THE RIGHTS OF DECEASED PERSONS

The contention that deceased persons enjoy constitutional rights is very difficult to sustain based upon the text of the Constitution insofar as such a right could be construed from Article 40.3.2 which is directed in making provision for the good name of persons to citizens, which dead persons are not. The decision of the European Court of Human Rights in McCarr v. U.K. relied upon by the plaintiffs derived from the requirement under article 1 of the Convention that the State secures to everyone the rights and freedoms derived in the Convention. That latter requirement in turn has prompted the European Court of Human Rights to conclude that there should be a form of official investigation where a person has been killed as a result of the use of force. The plaintiffs’ have not shown that this right as exists is capable of any precise definition. The plaintiff’s own submissions recognise the validity of there being a legislative prohibition against the estates of deceased persons maintaining actions for defamation in respect of publication regarding the deceased. This is justified by reference to good policy reasons, presumably relating to the difficulties which will be caused to the writing and recording of a recent history. This policy was less significant than the ascertainment of facts surrounding matters of legitimate public concern as are in issue before the Commission. The case of Hilliard v. Penfield Enterprises Ltd. supports the view that because the deceased are neither alive nor citizens they have no personal rights.

The fact that the Commission has decided to allow the congregation to be represented to defend allegations and findings which may be adverse to the congregation is part of the process which the Commission has determined to observe and it does not translate into a recognition that there is any constitutional entitlement as suggested by the plaintiffs’ argument.

UNTRACED PERSONS

The Commission has made it clear that it will take all reasonable steps to establish the whereabouts of persons against whom allegations are made. It was also stated that regard will be had to difficulties in tracing persons and making any decisions relating to them. It is difficult to see how the Commission could be required to do any more than this and is impossible to see how the fact that the person is untraceable establishes in itself a legal barrier to the making of determinations against their interests.

IN RELATION TO SO-CALLED AGGREGATION OF EVIDENCE

In his oral submissions Mr. Clarke on behalf of the Commission clarified that the Commission would only “aggregate” evidence in hard edge cases where such evidence could constitute corroboration in a criminal or civil case. By hard edge cases he meant cases involving allegations by a complainant which if proven would amount to a crime. He stated that by reason of the wide nature of the investigation being carried out by the Commission, aggregation of evidence in a less restricted sense might be halted if necessary, as in the case of an allegation of inferior educational standards or bad food safety standards or the like. He rejected the plaintiffs’ submissions that postponing the decision in a module until after all the evidence was heard was prejudicial to the respondents. He stated that while the trial of several charges before a jury might be halted because of the prejudicial nature of the joinder, this danger could be prevented by the Commission alerting respondents as to the cases which might be considered to offer cross- corroboration. Thus a respondent would be alert to the possibilities. The postponement of a determination to the end of the evidence taken in the module is also in ease of the respondents insofar as they would have the benefit of the deficiencies or frailties in a complainant’s case in other situations.

LIMITATION ON CROSS-EXAMINATION
The first defendant rejected that the arrangements for cross-examination on behalf of respondents were either ultra vires or unconstitutional. It was not for the court to say that there was a better way to arrange for cross-examination or that it ought to happen in the same fashion and in the sequence it happens in court. The requirement that respondents would furnish a statement was no more than that required by any tribunal for the purpose of enabling it to decide the right or the extent of the right of the witness to cross-examine other witnesses as cited at the tribunal.

SUBMISSIONS OF THE THIRD AND FOURTH NAMED

DEFENDANTS.
Counsel for these defendants (Ireland and the Attorney General) concentrated their submissions mainly in relation to the claim of unconstitutionality of the Act of 2002 made by the plaintiffs’ and also dealt with the defence of both the third and fourth named defendants and the second named defendant in relation to the prematurity of the plaintiffs’ claim. They said that until a stage is reached that the rights of any of the brothers are likely to be infringed by them actually being (using the expression of counsel for the plaintiff), “named and shamed”, there is no need for review by way of declaratory relief or judicial review of any other kind. At that stage if the Commission get it right that is the end of the matter. If they get it wrong they may be subject to remedy by judicial review in relation to those individual findings. The authorities relied on to support this view is Scariff v. Taylor [1996] 1 I.R. 242. He instanced the example of so-called aggregation of evidence to show that if the Commission or its Committee purported to use so-called aggregative evidence in a manner which was contrary to the jurisprudence relating to the probative effect of the system evidence, or similar fact evidence, then it would be open to the plaintiffs or any individual brother to seek judicial review in relation to such error.

Maguire v. Ardagh could be distinguished from the case under review and this was set out in a detailed table.

SUBMISSIONS ON BEHALF OF THE SECOND NAMED

DEFENDANT.
Counsel for the second named defendant said that although the second named defendant as minister had a responsibility for the drafting of the legislation and funding the Commission he was before the court as a body and an institution to be examined by the Commission in the same way as any other. The minister agreed with the proposals of the final ruling. He stated that in the case of Murphy v. Flood the former Chief Justice Hamilton stated the basis upon which the rulings of a tribunal can be interfered with on p. 303. One basis for such a ruling is such a review is that the ruling of the tribunal is either unreasonable or irrational or flew in the face of fundamental reasoning and common sense and the other reason is if the decision is made in breach of the applicant’s constitutional rights, not the constitutional rights of anybody else. He took issue with the plaintiffs submissions that the court should have concern not only for the constitutional rights, of the plaintiff but also the constitutional rights of others, meaning the deceased. He said that the only constitutional right that can be asserted as a constitutional right vested in the congregation and that was absolutely plain in the judgment in Murphy v. Flood. He stated that when the court came to decide the issue the question should be asked “what is the right that the congregation has come here to assert.” The question had to be asked, (even assuming that the congregation seek to assert that they have a right to a good name), how is the finding in phase I that an individual whom they do not represent is guilty of abuse going to affect that good name? Counsel for the plaintiffs had made it clear that they do not represent the deceased. They are not part of the persons whose constitutional rights (contentious as that issue may be) are being ventilated before the court.

After a number of years of revelations and the claims of sexual abuse coming to the fore the shock has diminished and the public would be in a position to distinguish between a finding against an individual and the congregation to whom that individual belonged.

The evidence of Brother Gibson revealed a striking amount of documentary evidence available to the congregation in relation to these matters. The complainants, under the rules of the committee, comes forward and sets out their stall first. They say “I was abused in 1963 in Artane” or wherever. They do not see the documents of the congregation as available to them. They are quite liable if there is an untruthful statement, to be tripped up by the documents that the brothers have. Nowhere in the proceedings have the plaintiffs said that they were hampered from defending themselves in phase II. In phase II it is open to the plaintiffs at every stage to question their responsibility for the acts of individual members. It is a matter that is likely to effect the second named defendant department and the congregation on one view of things, if there is a finding or findings of abuse against an individual in an institution, because a finding of abuse against a member of the congregation then triggers the involvement of the department to be brought to a court, so to speak, in terms of how it dealt with the institution concerned.

THE FACTS

Insofar as the facts set out in the evidence of Brother Gibson, noted above, which were not contested by the defendants, and the facts set out in the documentation of the Committee, including the final ruling together with the matters in respect of judicial notice, has been taken, by agreement in relation to memory, to set out the facts of the case, there is no need to summarise them here.

FINDING OF FACT

The following facts are the facts agreed are as found:

1. The first named defendant in its preliminary ruling and framework document has embarked upon a process of setting out the terms of reference of the first named defendant under the Act.
2. The congregation of the Christian Brothers had been recognised, de facto at least by the first named defendant, has having an interest in being heard in relation to the determination of such terms of reference into having representation in relation to the congregation and its individual members.
3. The first and second named plaintiffs are agreed to be the representatives of the congregation of the Christian Brothers.
4. Differences arose between the congregation of Christian Brothers and the first named defendant in relation to the continuation of the inquiries of the first named defendant under the act against deceased and certain disabled members of the congregation.
5. The congregation was dissatisfied with the manner in which the first named defendant by its committee ruled in respect of disputes in relation to such matters. The congregation of the Christian Brothers in the first instance requested that the first named defendant would in the first instance state a case to the High Court pursuant to s.25 of the Act of 2000 for the purpose of the resolution of such difficulties and the first named defendant decided and informed the congregation that it would not state such a case.
6. The plaintiffs’ have initiated these proceedings for the purpose of reservation of such differences on the basis of the six institutions described in evidence. Allegations of abuse go back to anything up to seventy years.
7. Taking Artane as one of the principal institutions there are over three hundred allegations against brothers, former brothers, living or deceased. Approximately 16 of these allegations relate to young boys who were in the Artane institution in the 1920s.
8. There was a convergence of allegations around the 1940s and 1950s.
9. In relation to a typical complaint, the congregation’s managers received a complaint from the Commission together with the material thereto. The congregation then examined the nature of the complaint by examining the file on the brother who was accused. That involves looking up the biographical details of the brother to prove that he was in the institution because in some cases the congregation can seek to prove that he was in a place as alleged. The congregation looked at the archive of material which would be accumulated with regard to the brother against whom the complaint is made and a particular search is made to see if there are any letters or any details that would indicate that there was concern 50, 60 or 70 years ago about any matter relating to the complaint.
10. As the evidence offered in relation to the examination of documentations relating to a brother against whom a complaint has been was given as an example, I find that throughout the institutions under the care of the congregation of the Christian Brothers there are available for examination admission files, infirmary reports, Department of Education reports on the school or institution and on the pupil, and possibly other material which would be relevant. There would also be visitation reports from the authorities within the congregation of the Christian Brothers and as in the case of Artane, there are available periodic visitation reports in relation to visitations, as frequently as yearly, available over a period of 60 or 70 years. Where these reports are available they may in certain instances be highly critical in their examination of the institution visited and may in fact be more critical than Department of Education reports and they would be very detailed. Thus I find that there exists a significant amount of well preserved and detailed documentary material against which complaints or collateral facts surrounding complaints may be checked. I find that the managers heading up a small hierarchical management council or structure relating to Artane (which closed in the 1970s) are all dead. There are three school principals alive, known to the plaintiffs still in their 70’s who had been Principals in Artane, two are brothers and one is a former brother. Apart from that extent of survivorship of management there is none other and in the absence of challenge by the defendants, I accept that that is typical of the survivorship of management for the various institutions under the care of the congregation of the Christian Brothers during the relevant period of the Act.
11. There is no surviving province leader who had an overall concern and responsibility for all of the institutions with either of the two provinces of the congregation of the Christian Brothers in Ireland and only one surviving member of the leadership team as an involvement as a junior membership of the leadership team when Artane was closing in the 1970s.
A feature of complaints made in Artane is that a brother may have taught in Artane for a period of one or two years and then left and taught for a period of up to 35 to 40 years in schools outside Artane and during the 30 to 40 years outside Artane there was no complaint made against them but find now that in the last year and a half the congregation are getting complaints of serious sexual abuse against a large number of brothers who were in Artane for such shorter periods or perhaps in some cases for a longer period. These allegations are limited to the time they were in Artane. Very often brothers against whom such complaints are made, where they spent only a short time in Artane, have gone on to occupy senior positions in the congregation and there, being no documentation of any complaints for many years against them, it is now very difficult for them to find themselves and deal with the suffering which in some instances requires counselling and gives rise to depression and anxiety. The stress and difficulty presented by allegations which many brothers consider are difficult to defend or contradict, by reason of the passage of time and other difficulties set out in this case, has caused quite a number of them to be reluctant to get involved in any form or ministry where there are young people.
Since 1969 the main building of Artane is now used as a secondary school and much of the building and physical layout has been demolished or significantly altered. And there is no similarity between Artane as it is known today and the Artane as it was in the 1940s, 50’s and 60s.

Apart from brothers who are alive and traced, three categories present problems in relation to getting instructions.

(a) Those who are not traced and cannot give instructions.
(b) Those who are infirm because of their memory lapse, their age or because they are too fragile to bring the complaints in great detail to them.
(c) Deceased brothers who cannot give instructions to the congregation.
12. I do not accept that the congregation cannot respond at least in some way in relation to the complaints insofar as the evidence was that there was a great deal of documentary information on the file which, while not wholly contradictory or a full defence to the complaints, nevertheless provide some background against which the evidence of the complainants, and any corroborative evidence relating thereto, can be tested.
I do accept that of the 32 brothers living who were in Artane at the relevant period, three or four present difficulties in getting proper instructions from them because of their age or other infirmity and not all of the 32 brothers from this period have had complaints made against them but, of those against whom complaints were made, up to 50% are complaints of serious sexual abuse.
13. In relation to sexual abuse and serious physical abuse, these were acts of a criminal nature at the time and, if detected, could have been prosecuted at that time.
Whereas the congregation of Christian Brothers have many non-residential schools, the proportion of complaints in non-residential schools to complaints in residential institutions is approximately in the ratio of 50 to 650 and where complaints are made in respect of non residential schools they are of a less intense pattern and tend to be in ones and twos in respect of each individual school. Nor is there any pattern to them, similar to patterns that may emerge in relation to the residential school.
13. The preliminary ruling and framework document of the Committee accept the applicability of the jurisprudence evolved in the courts in relation to staying or dismissing proceedings where a person in respect of whom a complaint has been made in similar criminal proceedings is prejudiced by reason of delay but says that the staying of the inquiry in relation to an individual complaint made under the Act, on the grounds of the application of such jurisprudence, would be the exception rather than the norm by reason of the distinction between the proceedings of the inquiry under the Act being inquisitorial in nature as opposed to the adversarial nature of the courts.
14. The Committee’s preliminary ruling and framework document have ruled that there is no reason in principle why death or delay alone would be grounds to stay the proceedings and has stated that in most cases by the reason of the inquisitorial mandate conferred on the first named defendant by the Act, the time for determination of prejudice in relation to questions of stopping the inquiry against any individual brother is when the investigation is drawing to a close and all statements and information is available.
15. While the preliminary ruling and framework document mentions in a number of places the availability and importance of corroboration and the testing of evidence of witnesses, including complainants and respondents, neither the preliminary ruling nor the framework document analysing the requirements of the Act in relation to corroboration, or the acceptance of the first named defendant of the need to test the evidence of witnesses so as to fully set out the legal and constitutional rights of the brothers to hearing consistent with principles of natural and constitutional justice.
16. The preliminary ruling and framework document by providing for the furnishing by a respondent brother of the statement of evidence as a pre-condition to his right to cross-examine a complainant prevents the representatives of the deceased and the congregation and the incapacited from cross-examining witnesses.
The preliminary ruling and framework document referred to aggregation of evidence in circumstances where either the context or any expressed interpretation of the term aggregation rules out the possibility of the inappropriate and illegal use of system and/or similar fact evidence in relation to complaints of other occurrences against the same brother.
THE ISSUES

(1) PREMATURITY OF PLAINTIFF’S CLAIM

Haughey v. Moriarty [1999] 3 I.R. (p. 1 and p. 75) recognised the right of persons who may be adversely affected by the findings of a Tribunal set up by resolution passed by both houses of the Oireachtas to have the terms of reference explained in the early course. At p. 77 of his judgment Hamilton C.J. stated:-

“The Court has already in the course of its judgment referred to paragraph 79 of the Salmon Report and adopted it as a correct statement of the law and practice applicable to such tribunals in this jurisdiction.
The Tribunal has not taken an early or any opportunity of explaining in public its interpretation of its terms of reference.
Having regard to the terms of the resolution passed by both Houses of the Oireachtas and the fact that he is named therein and is likely to be effected, one way or the other, by the findings of the Tribunal, the first plaintiff is entitled to an explanation by the Tribunal of its terms of reference, certainly so far as they relate to him.”
In Maguire v. Ardagh [2002] 1 IR 385 at p. 385 Geoghegan J. stated:-

“Turning now to the complaints made against the procedures intended to be adopted by the subcommittee, I would first make a general comment. As the subcommittee hearings had not got under way I do not consider that certiorari would be appropriate if a statement of intended objectionable procedures was the only ground. That remedy would be premature. But that does not mean that the judicial review proceeding itself would be premature. Once there was such a clear declaration of intention as to the nature of the procedures, it was legitimate to bring judicial review proceedings but insofar as the court would uphold the objections of the applicants it should be reflected in the form of declaratory relief rather than in the form of certiorari.”
The following were the two procedural directions made by the subcommittee which are considered the most objectionable and subject to judicial review:-

“1. A ruling that the evidence in chief of each witness would be taken first and that such cross-examination as might be permitted by the sub-committee would take place.
2. That in an elaborate schedule of timings prepared by the sub-committee all cross-examination together with the closing addresses were intended to be done on one day at the end.”
CONCLUSION
The Commission and its Committee, in the final ruling and related documents, have set out extensive procedural arrangements and clarified in detail how the rights of parties are to be determined, and the standard of proof, together with procedures for determining whether the inquiry mandated by the Commission and its Committee ought to be halted in respect of a particular complaint and other important issues. All of these issues vitally affect the interest of the plaintiffs’ congregation and its members. In relation to deciding an issue of prematurity which is in the nature of a preliminary issue the court takes the claim of interest of the plaintiff at its highest point. I am persuaded by the authorities set out in Haughey v. Moriarty and Maguire v. Ardagh on the basis that while these authorities related to Tribunals set up by resolution of the Oireachtas or sub-committee of the Dáil, a purposeful interpretation of the Act of 2002 justifies the examination of the functions of the Commission and its Committee with reference not only to the Act of 2002 but also the case law in this jurisdiction which has developed in relation to Tribunals established by resolution. I shall deal with the authority and reasons for such purposeful interpretation later in this judgment.

(2) THE TEST FOR ENTITLEMENT OF PLAINTIFFS TO DECLARATORY RELIEF.

In Murphy v. Flood [2000] 2 I.R. 298 it was held that it was purely a matter for the Tribunal to decide whether it would be in the public interest expedient to refuse to allow the public or any portion of the public to be present at any of the proceedings of the Tribunal and where there was no evidence that the decision of the respondent not to exclude the public from the hearing of the evidence, with regard to the contents of an affidavit the admissibility whereof was disputed in that case, was in any way unreasonable or irrational, the court was not entitled to interfere with the ruling made by the respondent. But in that case in his judgment Hamilton C.J. did point out that the refusal to interfere with the ruling was because there was “no breach of the applicant’s constitutional rights in regard thereto.” In O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 Finlay C.J. at p. 70 of the judgment said:-

“The question arising on this issue falls to be decided in accordance with the principles laid down by this court in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 which are set out in the judgment of Henchy J. in that case, with which in respect of the legal principles applicable, all the other members of the Court specifically agreed.

In dealing with the circumstances under which the court could intervene to quash the decision of an administrative officer or tribunal on grounds of unreasonableness or irrationality, Henchy J. in that judgment set out a number of such circumstances in different terms. They are:-
“1. It is fundamentally at variance with reason and common sense.
2. It is indefensible for being in the teeth of plain reason and common sense.
3. Because the court is satisfied that the decision-maker has breached his obligation whereby he: “must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision”
I am satisfied that these three different methods of expressing the circumstances under which a court can intervene are not in any way inconsistent one with the other, but rather complement each other and constitute not only a correct but a comprehensive description of the circumstances under which a court may, according to our law, intervene in such a decision on the basis of unreasonableness or irrationality.
In setting out these principles, Henchy J., in the course of that judgment, quoted with approval the statement of Lord Greene M.R. in Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223 where, at p. 230, he stated:-
‘It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, than the courts can interfere …; but to prove a case of that kind would require something overwhelming’.”
Griffin J. in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642, in agreeing with the principles laid down by Henchy J., quoted with approval the speech of Lord Brightman in R v. The Chief Constable of North Wales Police ex p. Evans [1982] 1 LLR. 1155 where he stated as follows at 1173 – 1174:-

“Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power … Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”
In University of Limerick v. Ryan (Unreported, High Court, Barron J., February 21st, 1991) Barron J. stated at p.p. 28/30 in relation to the obligation of a housing authority to provide housing for a traveller family under the Housing Act, 1966 as amended:-

“The position of a traveller family which becomes entitled to be provided with a dwelling must be considered. It is uncontested that such family must be offered a dwelling. If this is refused because the family belongs to the class of persons who traditionally pursue or have pursed an nomadic way of life, does this mean that the Council now has a discretion whether or not to provide that family with a caravan site? The question to the answer is no. It would not be a proper construction to be placed upon the relevant provisions of the Act. Section 13 must be taken to intend that the obligation of the Council to provide for housing needs extends to the case of those whose section 13 applies to the provisions not of dwellings but of caravan sites.”
This judgment has been accepted in other cases involving claims by members of the travelling community to be housed in dwellings or halting sites for the proposition that a council with administrative discretion to provide appropriate housing for travellers does not exercise that power by refusing to exercise its discretion at all by not providing such housing accommodation. In Maguire v. Ardagh the essential grounds for declaratory relief granted were that the Oireachtas Committee was acting ultra vires.

From the foregoing authorities and other authorities considered by me it would seem that the standard for seeking declaratory relief are is follows:

1. Where the final ruling and related documents disclose a ruling which is contrary to the constitutional rights of the plaintiff congregation.
2. Where the final ruling and relating documents propose in clear terms that the Commission and its Committee intend to adopt a procedure which is ultra vires the Act of 2002.
3. Where the Commission and its Committee in the Final Ruling have failed to exercise its discretion to provide a full and adequate ruling in an area where the rights of the plaintiffs’ congregation may be adversely affected.
RIGHTS OF DECEASED TO PROTECTION AGAINST ADVERSE FINDING.
I find none of the cases cited by the plaintiffs to justify the existence of a constitutional right of the deceased to their good name or reputation. Quite the contrary. Such right was doubted by Gannon J. in Hilliard v. Penfield Enterprise Limited. The European Court of Human Rights in the case of Kelly and Ors v. United Kingdom at p. 26 stated the general principles relating to the court’s assessment of that case regarding a claim by the applicants that their relatives had been unjustifiably killed and that there had been no effective investigation into circumstances of their death. They invoked Article 2 of the Convention which provides:

“Everyone’s right to life shall be protected by law. No-one should be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

At p. 26 the judgment states as follows:

“91. Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, and which in peacetime no derogation is permitted under Article 15. Together with Article 3, it also enshrines one of the basic values of the democratic societies making up the Council of Europe. The circumstances in which the depravation of life may be justified must therefore be strictly construed. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective. (See McCann v. United Kingdom judgment of 27th September 1995 series A no. 324 pages 45 to 46..146 to 147).
92. In the light of the importance of the protection afforded by Article 2, the Court must subject deprivations of life to the most careful scrutiny, taking into consideration not only the actions of State agents but also all the surrounding circumstances. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as for example in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occur. Indeed the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation …”
It is clear that that case and the other cases cited by the plaintiffs in relation to inquiries into deaths relate primarily to the right to life, rather than any rights being asserted on behalf of the deceased. It is clear from the judgment of the Chief Justice in McDonnell v. Brady that no final decision was being made at the then interlocutory stage of the hearing in relation to the right of the plaintiff to defend her late husband’s reputation against unjust attack. At p. 599 of the judgment he stated:

“It is, in any event, beyond doubt that the applicant has been afforded important safeguards which will be of important assistance to her in defending her late husband’s reputation against unjust attack. The subcommittee allowed her to be legally represented, although she is clearly in a significantly different position from those persons still alive who have an admitted and indisputable constitutional right to the vindication of their good name. Her legal representatives are entitled to cross examine any witnesses whose testimony may be in any way damaging to the interests she seeks to protect and, while it is doubtless always preferable to be able to mount an immediate challenge by way of cross examination to such evidence, it is, at least arguably a matter for the subcommittee to determine the time at which such cross-examination should be conducted. That is an issue which will have to be resolved in the High Court during the course of the present proceedings, but it certainly does not, of itself, constitute a denial of constitutional and natural justice such as to demand the intervention by the High Court in the form of so drastic a weapon as an indefinite stay of the sub-committee’s proceedings.”
On p. 600 of the judgment the Chief Justice goes on to state (in relation to the refusal of the Oireachtas sub-committee to pay the costs of the legal representation of the applicant):-

“It is not for this court, at this stage of the proceedings, to adjudicate on the correctness of that view in law, any more than it was for the High Court. It is sufficient to say that, if the applicant is found to be entitled, either as a matter of constitutional right or by virtue of the provisions of the Act of 1997, to be paid the cost of legal representation in these proceedings, she will be entitled to an appropriate declaration to that effect which will no doubt be acted upon by the Minister for Finance. It is clearly not, however, a ground on which, at this stage, the entire proceedings of the sub-committee should be stayed.”
Apart from the cases mentioned I can find no authority in the history of the common law asserting a right of the deceased to a good name or to any property rights. Indeed in the area of property rights the common law from ancient times is noteworthy for the extremes to which the courts went to free up land from the rule of the grave as in the cases of the evolution of the fiction laden fines and recoveries procedures which evolved for the purpose of barring the entail, and the development of the rule against perpetuities. A similar approach was adopted with the onset of legislative intervention as shown by the Mortmain Acts and indeed the Fines and Recoveries Act, 1883.

In the light of the foregoing I find much force in the arguments of the first named defendant that the provisions of the Constitution providing for rights of citizens should be interpreted literally. While a literal interpretation of the Constitution does not always find favour with the courts I find that when such interpretation is tested schematically by testing it against other rights in the Constitution such as the right to equality before the law, the right to bodily integrity, the right to inviolability of the dwelling and other rights of the living, I find that there is no place in the Constitution from where the rights of the deceased may be rationally inferred. I consider that it is necessary for the purpose of disposal of the issues in this case to decide on the issue notwithstanding that the plaintiffs do not directly represent the deceased. I do not accept the validity of the claims of the plaintiffs in relation to the issue.

A RIGHT OF CONGREGATION TO GOOD NAME AND PROTECTION AGAINST ADVERSE FINDING OF THE COMMITTEE.

The Committee in its Final Ruling admitted the de facto right of the congregation to protection against an adverse finding. It states at paragraph 7.4, page 38:-

“By reason of that association of where an institution is under investigation by this Committee, whether or not past or present members are also under investigation, the process is potentially injurious to the reputation of the congregation, which, in effect, means that it is potentially injurious to the reputation of the current members of the congregation.” Earlier in the paragraph the Committee states that the congregations are given a right of representation not as of right and does not concede any constitutional right of the congregation to its members to such representation in the event of an adverse finding being made against any of its existing or past members. It is stated that it is anticipated that the adoption of this report approach will assist in enlisting the true facts.”
While the Court acknowledges the right of the Committee to give any person, alive or deceased, the facility of representation for the purpose of assisting the Committee and eliciting the true facts, it is appropriate that the court would examine whether in the particular circumstances of an adverse finding being possible against the members of the congregation, either past or present, the congregation as representing its existing members has a right in law and under the Constitution to such representation and the right to protection against a finding adverse to them and a right to their good name.

I consider that the appropriate point of departure for an examination of the legal and constitutional rights of the members of the congregation qua congregation is an examination of the law in this jurisdiction relating to group defamation. The law of defamation is the branch of the law of tort which enables citizens to assert and protect their constitutional right to their good name and, if the tort of defamation did not exist, it is fair to say that citizens would probably seek the same type of remedies under the heading or tort of breach of constitutional right to their good name.

The Law Reform Commission consultation paper on the Civil Law of Defamation published in March 1991 discusses the law on Group Defamation in Ireland on pp. 25 to 28. From the outset the paper seeks to set out the rule relating thereto as:

“No member of a group or class can bring an action in respect of defamatory statements made about the group unless he can establish that he was specifically referred to. The circumstances or words of the statement may indicate a reference to the plaintiff. Furthermore, where the reference is made to a limited group, the plaintiff may be able to maintain an action. It is a matter of law for the Judge as to whether the words are capable of referring to the plaintiff who must then satisfy the jury that he was identified as a matter of fact.”
The discussion concludes with a reference to the following statement put forward by Duncan & Neill, Defamation 1978 at para. 6.13, p. 30:-

“It is submitted, though there is no satisfactory modern English authority on the matter, that the right approach is that even a general derogatory reference to a group may affect the reputation of every member, and that the court would adopt as its test the intensity of suspicion cast upon the plaintiff.
Where therefore allegations are made against members of a class the question or consideration is whether, having regard at the size of the class, the gravity of the imputation, the number of members of the class against whom the allegation is made and any other relevant circumstance, reasonable persons would understand that the plaintiff himself had actually done the act alleged or (as the case may be) was reasonably suspected of having done it. Furthermore, there may be cases where the allegation in the words complained of implicates directly only some of the members of a class but the words may nevertheless bear a further inferential meaning (which would involve all the members of the class) that the remainder were, for example, associates of criminals, or were persons who had not made sufficient inquiry as to the character of their business associates. Indeed the problems presented by class libels underline the importance in every case of deciding what the words in their context would be reasonably understood to mean.”
If these are the tests applicable to the law of defamation it would be by no means certain that it could be said that an allegation of abuse which, if made against one or a group of members or deceased members of the congregation, could be held to be defamatory of the group and thus it is unlikely that the constitutional rights of the other members of the group to their good names would be violated.

However, consideration of the issue does not end with that conclusion. In the issue in this case must be examined in the light of the mandate of the Committee to investigate the management responsibility of the institutions involved. While the final ruling accepts that the congregations might not have been, in a formal sense, the management of the particular institutions, it recognises that in the case of the order or congregation the so called charism of the congregation may be sufficient to bring them within the target of examination of the Committee under the statute. It is interesting to note that this type of approach underlay the policy of the Trustees (Appointment of New Trustees) Act, 1850 in relation to the appointment of New Trustees of a School etc. of a “Congregation or Society”.

Having regard to the evidence of the witnesses in relation to the fact that the management of Artane, for instance, consisted of a superior and an informal council, most of whose members are now deceased or incapacitated, and whose records are within the custody and control of the congregation, and who were under the regular inspection and control of the order or congregation, it can only be concluded that the congregation not only had a management responsibility at the time involving complaints back to 1940, but that they are now effectively the only available representatives of management. Added to this consideration is the fact that the evidence indicated that the members of the congregation through their association with its founder and his examples and ideals and their antecedent within the congregation held themselves out as leading selfless and exemplary lives. These factors lead me to the conclusion that the application of the scheme of the Act of 2002 to the facts of the association of the members of the congregation with the persons and management members against whom complaints are made, have a right under the Constitution to protect their good name, which arises by reason of their positive association with these people in the context of setting out the aims and ideals of the congregation and to the constitutional right of protection by way of representation against an adverse finding. As it is clear that an adverse finding by way of identification of a past or existing member of the congregation, whether living or dead, is a trigger mechanism for the second phase of inquiry in relation to management failures, the congregation have a vital interest in representation at the first phase of the inquiry relating to the decision as to whether a finding being made against such member or members that they have committed an abuse within the meaning of the Act of 2002. This right of representation and constitutional rights will be general and certainly not greater than the rights of living present or past members.

I shall refer from now on to such right of the congregation as a derivative right being derived from their members, past or present, living or dead.

DERIVATIVE RIGHT OF THE CONGREGATION TO HAVE INQUIRIES BY THE COMMITTEE PROHIBITED OR STOPPED IN LIMINE BY REASON OF DEATH, INCAPACITY, UNTRACEABILITY OR OTHER DISADVANTAGE OF THE RESPONDENT AFTER THE COMPLAINANT HAS GIVEN EVIDENCE
The argument of the plaintiff in relation to the rights of the members or the congregation in derivative fashion to seek to stop the inquiry of the Commission in limine once the complainant had given evidence, and the fact of delay, death or any of the other incapacities or disadvantages outlined as effecting the categories of persons, had two layers to it. The first layer involved what was identified by counsel for the Commission as the normative argument. As I understand it, the normative argument is that if a respondent is dead such respondent cannot give instructions and hence the right of cross-examination, confirmed In Re: Haughey and as elaborated and emphasised by the majority judgment in Maguire v. Ardagh, cannot be exercised regardless of when the death occurred. The normative argument then would seem to be independent of the issue of delay. The second layer of the argument was paraphrased by counsel for the plaintiffs in the oral hearing by asserting that, while the Final Ruling accepted the jurisprudence of the courts in relation to prohibition of trials in civil and criminal cases on the basis of “a risk of an unfair hearing”, the committee erred in not applying that jurisprudence to the application of the same standard for prohibition of an inquiry against the members suffering from memory loss or other disadvantages of delay. The two layers of the argument were tempered by the concessions on the part of the plaintiffs that instances, where there had been a confession or conviction for abuse in respect of complaint, that the arguments would not apply. Relating to the two layers of argument regarding prohibition in limine were arguments that actual findings against deceased persons or incapacitated persons would be fundamentally unfair by reasons of the capacity to avail of taking instructions to be in a position to cross-examine at anything near the standard posited in Maguire v. Armagh.

These are the core issues in this action and I consider that in order to examine them properly I should deal with and set out the following aspects which have guided my consideration of them and in analysing the extensive submissions of the parties as follows:

1. The method of construction of the Act of 2002,
2. The provisions of the Act of 2002, the construction of which is necessary to assist in resolution of the issue,
3. The manner in which the courts have dealt with claims against the deceased and the incapacitated and the evidential rules and practises which have arisen,
4. Interpretation of the relevant provisions of the Act of 2002 in accordance with the method of construction above,
5. The relationship between the jurisprudence of the civil and criminal courts and the approach of the Committee in allowing cases against the deceased and persons suffering from incapacities and delay to proceed,
6. The relevance of the statutory mandate given to the Committee to inquire, as far as possible, into the matters directed by statute,
7. The relevance (if any) of a quantum approach to findings to facilitate inquiry under the statute.
As is clear from the short and long titles of the Act of 2002 the purpose of the Commission and the committees is to inquire into sexual abuse and related matters. I find that the function of the Commission and its committees is the same as that of the Tribunal of Inquiry set up by resolution of the Houses of the Oireachtas and appointment thereunder by a Minister in accordance with the Tribunals of Inquiry (Evidence) Act, 1921 and Tribunals of Inquiry (Evidence) (Amendment) Act, 1979.

In the judgment of the Supreme Court in Lawlor v. Flood [1999] 3 I.R. 107 Hamilton C.J. at p. 121 stated as follows:-

“The provisions of s. 4 of the Act of 1979 cannot be construed in isolation.
As stated by Henchy J. in the State (Lynch) v. Cooney [1982] I.R. 337 at p. 380:-

‘It is to be presumed that, when it conferred the power, Parliament intended the power to be exercised only in a manner that would be in conformity with the Constitution and within the limitations of the power as they were to be gathered from the statutory scheme or design’

Consequently it is necessary to consider the statutory scheme or design in relation to Tribunals of Inquiry of which section 4 is part and the background against which such scheme was introduced by the legislature.”

Section 15 provides that the Confidential Committee shall have what the parties summarised as a “listening role” in relation to the complaints of persons who are prepared to subject their complaints to the testing and cross-examination of the Investigation Committee. Section 5 of the Act of 2000 provides that the Commission shall prepare a report in writing having regard to the reports of the Investigation Committee and the Confidential Committee. Section 5 subsection 4 provides as follows

“If the report contains findings that are based on findings in a report of the Confidential Committee, the report shall include a statement to the effect that the first-mentioned findings are based, solely or partially, as the case may be, on the latter findings and that the evidence on which the latter findings are based could not be tested or challenged by any person and (if it be the case) was not corroborated.”

Apart from references to findings being made on evidence and a definition of evidence contained in the Act of 2000, there is no further reference to an evidential standard to be used in the proceedings of either Committee.

The Final Ruling states in relation to findings against a deceased person:-

“7.10 It is acknowledged that the statutory function that determine issues of fact and to publish findings conferred by the Act on this Committee is in substance what the Supreme Court described as an adjudicative function and that the Inquiry being conducted is what the Supreme Court characterised as an adjudicative Inquiry. However, it is not accepted that it follows that this Committee is always precluded from making the determination of abuse whereas the person against whom the abuse is alleged is dead or, alternatively, it is so precluded unless there are exceptional circumstances, for example, that it can be proved that, during his lifetime, the person was convicted of a criminal offence or made an admission in a disciplinary or like inquiry in relation to the conduct complained of. Moreover it is not accepted that the making and publication of findings against the deceased person should, in principle, be the exception rather than the norm. In civil litigation, a court is not precluded from making a finding which attributes blame to a deceased person.
The evaluation or assessment process which precedes a determination or finding is not dependent on there being accounts of the incident or state of affairs on which the allegation is based from two or more proponents to weigh in the balance. There are many ways in which the credibility of a witness and the reliability of his account may be tested. Irrespective of the stance adopted by any party who is represented in the process, this Committee considers that there is an onus on it to test the recollection and veracity of a witness. This flows from the obligation to act fairly. (My emphasis added).
7.11 It is the Committee’s understanding that, as a matter of law, it is not precluded for making a determination and publishing a finding that a person who is now deceased during his life or her lifetime perpetrated abuse within the meaning of the Act on a child in an institution, merely because the deceased person cannot be afforded the opportunity to give his account, possibly supported by corroboration or objective evidence, and to have the person making the allegations cross-examined by reference to his account and any such supporting evidence. A fortiori, it is not precluded from making a determination in such circumstances which identifies the institution. Similarly, the absence of a person from the process because of inability to trace his whereabouts does not preclude the making of a determination and the publication of a finding of abuse by that person. However it is recognised that a high degree of caution must be exercised in evaluating evidence and in making a determination in relation to the conduct of a deceased person, who did not have an opportunity in life to answer the allegation of misconduct, or in relation to the conduct of a person who may be alive but is untraceable and unable to invoke his constitutionally guaranteed right to protect his good name.”
There is no further analysis setting out the Committee’s understanding as to how the evidence against the deceased person can be tested or in the “many ways in which the credibility of a witness and the reliability of his account may be tested”.

It is appropriate, therefore, to examine in more detail how the courts have tested the evidence in cases which have been allowed by the courts to proceed against deceased persons. In Babingtons County Court Practice 2nd in relation to the proofs necessary to obtain a primary degree for the administration of an estate on the application of a creditor he has stated at page 41:

“A claim against the state of a deceased person is not to be allowed on the uncorroborated evidence of the claimant: Clegg v Clegg 22 I.L.T.R. 42; Re Harnett 17 L.R. Ir. 543, in which case, Chaterton V.C. said that the rule was of universal application, and did not depend on the character or position of the claimant. Where a deceased person, whose estate was being administered, had accepted a bill, in which the drawer’s name had not been filled in, the personal representative of the deceased holder who had filled in the drawer’s name was allowed to prove for the amount of the bill without further proof of the debt beyond evidence that the accepter was to some extent indebted to the drawer Re Duffy, deceased, 5 L.R. Ir. 92. Shop-books in the handwriting of the plaintiff are corroboration of the plaintiff’s claim; Ward v. Harold 27 I.L.T.R. 115”.
Later when dealing with adjudication of deaths and claims against an estate on the taking of accounts under the County Courts (Ireland) Orders, 1890 it is stated at page 357 “The evidence of the claimant must be corroborated”. In Carltons, The Jurisdiction and Procedure of the County Courts in Ireland, at p. 1179 it is stated:

“In proving a claim against the assets of a deceased person, the rule of equity, that the evidence of the claimant must be corroborated, now applies at law as well as an equity – Ferris v Hannah (Circuit Court) 13 I.L.T.R. 127; Re Duffy 5 L.R.I. 92; Boak v Moore 7 L.R.I. 322; Re Harnett 17 L.R.I. 543.”
In Practice and Procedure in Administration Mortgages Suits in Ireland by John W Scanlan (1963) it is stated at p. 53 in relation to proof of debts against the estate of a deceased:-

“Corroboration is not required but it is desirable. There is no rule of law requiring it although there is only the evidence of a living claimant against deceased debtor such evidence, if it is convincing need not be corroborated” (and cites as authorities Re: Harnett (1886) 17 L.R.I. 543, Healey v. Bright [1936] 70 I.L.T.R. 224, Somers v. Erskine [1944] I.R. 368 (Supreme Court), Coughlan v. Corcoran (1950) 84 I.L.T.S.J. 84).
In giving the judgment of the Supreme Court in Somers v. Erskine (No. 2) [1944] I.R. 368 O’Byrne J. at p. 385 of the judgment said:-

“It was also contended by Mr. Walker that this is a claim against the estate of a deceased person, and he relied upon the rule, which he alleges, is recognised in Courts of Equity, that such claims ought not to be allowed without corroborative evidence. He referred us to the statement of this rule by Chatterton V.C. in Re: Hartnett 70 L.R.I.R. 543 at page 547 ‘The invariable practice of this Court has been for years that claims against the estates of deceased persons cannot be sustained without corroborative evidence’. When, however he was pressed at the conclusion of the case, Counsel did not contend that this was essential as matter of law as distinguished from a rule of prudence. Some parts of the plaintiff’s case at the trial were not supported by corroborative evidence but, nevertheless, we are of opinion that the trial judge was, in law, entitled to accept these matters on the uncorroborated testimony of the plaintiff, and we see no reason for differing from him on that matter”.
The so called rule of prudence might be explained by the following reference in Williams on Executors and Administrators 9th ed. 1893 Part IV Book II p. 1658:-

“It has been said that in the case of a conflict of evidence between living and dead persons there must be corroboration to establish a claim advanced by a living person against the estate of a dead person, but there is no rule of English law laying down such a proposition. The statement of a living man is not to be disbelieved because there is no corroboration, although in the necessary absence through death of one of the parties to the transaction, it is natural that in considering the statement of the survivor, we should look for corroboration in support of it; but if the evidence given by the living man brings conviction to the Tribunal which has to try the question, then there is no rule of law which prevents that conviction being acted upon. The rule, such as it is, is a rule of prudence rather than of law, and applies to cases of alleged debt as well as to cases of alleged gift, and in an action tried by a jury it is the duty of the Judge to recommend the jury to disregard the unsupported evidence of the claimant; but if they should decline to do so, and should find for the claimant, quaere if their verdict could be interfered with. In the case of Hill v. Wilson L.R.8 CH 888 which, however, was a case where parol evidence was tendered for the purpose of altering the terms of a written contract made with the deceased, Lord Justice James said: ‘The evidence given is the parol evidence of the maker of a promissory note as to a conversation alleged to have taken place between himself and the person to whom the note was given, that person being dead. Even if such evidence be legally admissible for any purpose, the interests of mankind, in my opinion, imperatively require that, unless corroborated, it should be wholly disregarded. Nobody would be safe in respect of its pecuniary transactions if legal documents found in his possession at the time of his death, and endeavoured to be enforced by his executors could be set aside, or varied, or altered by the parol evidence of the person who had bound himself. It would be very easy of course for anybody who owed a testator a debt to say, “I met the testator, and he promised he would not sue,” “I met the testator and I gave him the money”, “I met the testator, and in the consideration of something he agreed to relieve me”. The interests of justice and the interests of mankind require that such evidence should be wholly disregarded”.
In McCarnon v. McCarnon (Unreported, Supreme Court, 13th February, 1997) Murphy J. noted that the claim of the plaintiff against the estate of the deceased was viewed by the trial judge (Carroll J.) “with a critical eye” and Murphy J. went on to state:

“As the learned trial judge recognised, judicial decisions have always proceeded on the evidence in relation to claims against the estate of a deceased person should be carefully investigated”.
In Carter v. Ross (Unreported, High Court, Murphy J., 8th December, 2000) the frequency of claims against farmers or the estates of farmers in respect of promises to pay for work done either by cash or land was highlighted as follows by Murphy J.:

“In this jurisdiction there is a long history of this kind of situation, because of the age, structure, emigration etc. An example is the situation of the elderly farmer living alone in a small holding and helped by neighbours in the days before social welfare. What often gave rise to great difficulty was that the farmer would then bequeath to the farm to some unknown person or relative living overseas. The courts have always recognised that one cannot convert charity into the right to receive property. But the courts have been satisfied when work had been done by a relative or nephew not just on some general expectation but on a very specific ground that the relative or nephew would be given the land. Normally, there is the problem that the deceased is no longer there to deny the promise.”
In neither of the two modern Irish texts the Law of Evidence in Ireland by Caroline Fennell and Evidence by Ruth Cannon and Niall Nelligan is the test for corroboration in a civil claim against a deceased person mentioned although in Phipson, Evidence, 15th Ed. (2000) it is as stated at p. 306:-

“13-11 It is a rule of practice that courts will not act upon the uncorroborated testimony of such claimants unless convinced that such testimony is true.”

From the footnote and authorities it would seem that this is not the most “stringent” test and probably equates to the test in Somers v. Erskine.

From the foregoing authorities I am of opinion that in the absence of other convincing evidence the courts would be very reluctant as a matter of prudence to allow a claim against a deceased person unless it was corroborated in relevant material respects. This standard bears many similarities in terms of discretion with the standard now applicable to the warning on corroboration to be given at the discretion of the trial judge to the jury in trials relating to the evidence of sexual offence victims under s. 7 of Criminal Law Rape (Amendment) Act, 1990.

Turning to the provisions of s. 5(4) of the Act of 2000 I find the statement contained in paragraph 3.12 of the final ruling helpful:

“Subsection 4 of section 5 ensures that findings in the published report which are not the product of the inquiry carried out by this Committee (the Investigating Committee) are seen to be such. Subsection 4 provides that, if the published report contains findings that are based on the findings of the Confidential Committee, the published report shall include a statement to that effect and that the evidence on which such findings are based could not be tested or challenged by any person and (if it be the case) was not corroborated. This provision would suggest that it was the intention of the legislature that the testing of evidence, the challenging of evidence by a person and the corroboration of evidence would be features of the inquiry of this Committee and would be of significance in the decision making process”.
In relation to the determination of the Investigating Committee it stated:

“In particular if the person who is alleged to have perpetrated the abuse is absent from the process, in evaluating the available evidence, the implications of the non-availability of the account of the absent party will be weighed in the balance and, as has been stated, a high degree of caution will be exercised.”
I agree with these views and the interpretative approach being considered by the Committee in the final ruling. I find that on the approach to construction of the Act of 2000 already suggested by me the only inference that can be drawn from the expressed reference to corroboration and other testing in s. 5(4) is that the more rigorous inquiry envisaged by the finding by the Committee against respondents that they had being guilty of sexual abuse is that the standard of corroboration is required by the Act before a finding can be made.

The question is whether that standard is one of a requirement of corroboration which is mandatory in all cases or one analogous to the standard in the Act of 1990 and the so called rule of prudence or practice of the courts in relation to civil claims against the deceased to leave the decision as to the requirement of corroboration to the Tribunal deciding the facts to cases where the evidence is not found to be otherwise convincing. I find that the proper construction and interpretation of the Act of 2000 is that the Investigating Committee should exercise its discretion in relation to corroboration on the same basis as the courts have done in relation to the claims against the estates of deceased persons. My reason for so doing is, firstly, based on the practice of the courts in respect of such claims against the deceased and also on the basis of the application of the double construction rule as set out in East Donegal Cooperative v. Attorney General [1970] I.R. 317 at p. 341 and in Re: Haughey [1971] 1 I.R. 217 at p. 254 and bearing in mind the decision of Henchy J. in McMahon v. Leahy [1984] I.R. 525 where he sates at p. 541:

“- but where… a post constitution statute authorises the making of an order in stated circumstances, the legislative intent must be held to comprehend the authorised order will not be made, even though the stated circumstances are shown to exist, if it is shown that the order would necessarily infringe the constitutional right of the party against whom it would operate … [The presumption of constitutionality] carries with it not only the normal presumption that laws enacted by the National Parliament are not repugnant to the Constitution but also the presumption that the provisions of such laws will not be administered or applied in a way that will infringe constitutional rights. The presumption of constitutionality extends to both the substance and operation of a statute: it is a presumption that admits of rebuttal only by a contrary intention appearing in the terms of the statute itself”.
DELAY JURISPRUDENCE

I examine now the relevance of the cases in which the courts have stayed proceedings by reason of the delay and the arguments of the plaintiffs in relation to their complaint that while the Commission and its Committee set out the jurisprudence very clearly they did not apply it correctly to the issue of the delay in the inquiry. From the outset I note that the plaintiffs’ submissions were not made on the assumption that the proper construction of the Act of 2000 was that there was a requirement not only that evidence would be tested but also (at least at the discretion of the Committee) that there would be corroboration of that evidence in appropriate cases. When asked by me in the hearing whether this was a correct view of the plaintiffs position, counsel for the plaintiffs left the matter uncertain by saying that perhaps it did or perhaps it did not, but in any event if corroboration emerged as a requirement in relation to the evidence, that requirement placed the dead and the legally incapacitated at an even greater disadvantage by reason of the difficulty in obtaining instructions from them as to how corroboration might be obtained in respect of their accounts of the matters in dispute.

The principles of law relevant to an application to dismiss an action for want of want of prosecution were laid down in Primor Plc v. Stokes Kennedy Crowley [1996] 2 I.R. 459 in the judgment of Hamilton C.J. at p. 475 as follows:-

(a) the courts had an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
(b) it must, in the first instance, be established by the parties seeking a dismissal of proceedings for the want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgment on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;
(d) in considering this latter obligation the court is entitled to take into consideration and have regard to
(i) the implied constitutional principles of basic fairness of procedures,
(ii) whether the delay and consequent prejudice in the special facts of the case were such as to make it unfair to the defendant to allow the action to proceed and make it just to strike out the plaintiff’s action,
(iii) any delay on the part of the defendant, because litigation is a two party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct on the defendant amounts to acquiescence on the part of the defendant in the plaintiff’s delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action did not, in law, constitute and absolute bar preventing the defendant from obtaining a dismissal but is a relevant factor to be taken into account by the court in exercising its discretion whether or not to strike out the claim, the weight to be attached to such conduct depending on all the circumstances of the particular case,
(e) whether the delay gives rise to a substantial risk that it was not possible to have a fair trial or is likely to cause or have serious prejudice to the defendant,
(f) the fact that the prejudice to the defendant referred to in (vi) may arise in many ways and be other than that merely caused by the delay, including damage to a defendant’s reputation and business.
Taking the tests set out in Primor in sequence it is appropriate to examine whether and to what extent they compare with the tests that may apply to the Committee in delay cases.

1. The parties recognise that at the very least to some extent the Committee has an inherent jurisdiction to control its own procedure and dismiss a claim when the interests of justice so require.
2. The fact that there is a statutory mandate to inquire back to instances occurring in 1940, and possibly, before means that there is no objective test of inordinate and inexcusable delay such as suggested by test no. 2 in Primor and the other civil authorities.
3. The Committee must, as in test 3, exercise its discretion whether on the facts the balance of justice was in favour or against the case proceeding. This is recognised in a limited way by the Committee, but the Committee must, in exercising this discretion, have regard to the clear terms of the statute which directs the Committee to inquire into the facts where there is a complaint of a statement made by a complainant and if the complaint is proven to proceed with phase II of the inquiry.
4. Of the tests set out in paragraphs (a) to (g) the only tests that I consider appropriate for consideration in relation to an inquiry proceedings before the Committee are
(a) the implied constitutional principles of basic fairness of procedure;
(f) whether the delay had given rise to a substantial risk that it was not possible to have a fair trial.
There is the alternative test in subparagraph (f) as to whether it was likely to cause or had caused serious prejudice to the defendant. This prejudice is explained in sub-paragraph (g) by that stating that “the fact that the prejudice to the defendant referred to in (f) might arise in many ways and be other than that merely caused by the delay including damage to a defendant’s reputation and business.” It is clear to me that this type of prejudice as distinct from the prejudice in preparation of a defence is not something that would arise to the same significant extent to the respondent’s before the committee by reason of the fact that:-
(a) the findings of the committee are legally sterile; and
(b) the factual prejudice envisaged by the judgments of the Supreme Court in relation to damage to reputation and good name and reasons of publicity during the course of the inquiry is minimised if not eliminated by the private nature of the inquiry up to the identification of the perpetrator in the event of a complaint being proven.
While corroboration of evidence against a deceased defendant or a defendant who is facing a claim to which a delay test is being applied does not appear to have been discussed as a principle by the courts when dealing with civil delay cases, it does emerge from the medical delay cases, especially that the fact that documents and records are missing is given a great deal of weight in deciding to stay or dismiss a case by reason of delay. Conversely the availability of records tends to lessen the chances of a dismissal or a delay. It appears to me that in placing emphasis on the availability otherwise of documents and records the courts have in fact implied an informal test in relation to the availability of corroboration of the claim and this fact was given recognition in the Primor judgment, where O’Flaherty J. states (at pp. 517 – 518), when dealing with the question of missing documents:-

“While it has not been established to my satisfaction that the missing documents would prove fatal to the processing of the case, this fact would undoubtedly contribute further confusion to the case. It should be emphasised that documentary evidence needs to be proved in a court like every other evidence. While the general rules of evidence with regard to admissibility, i.e. relevance, hearsay, opinion, etc. apply to documentary evidence, additional requirements include proof of contends and proof of due execution …
While counsel for the plaintiff bravely asserted to prove their case and if they failed to prove any particular document then their client would have to take the consequences, in the light of the deaths or absence of so many people important to this case, it is impossible to see how the documents will ever get to the stage of being proved let alone being explained or analysed.”
In Kelly v. O’Leary [2001] 2 I.R. 526 Kelly J. stated at p. 544:-

“I am satisfied that there is here a clear and patent unfairness in asking this defendant to defend this action after the lapse of time involved. Actual prejudice has occurred to the defendant by reason of the delay. The defendant has not contributed to this delay.
There is here a real and serious risk of an unfair trial. As a matter of probability the trial may amount to an assertion countered by a bare denial. Indeed even the ability of this defendant to make a denial is doubtful in respect of a number of allegations. Such an exercise would be far removed from the form of forensic inquiry which is envisaged in the notion of a fair trial in accordance with the law of this State.
Constitutional principles of fairness of procedure require that the action not proceed. To allow the action to go would put justice to the hazard.”
In reaching this conclusion Kelly J. followed Primor v. Stokes Kennedy Crowley as the authority setting out the criteria for his decision. In my opinion if Kelly v. O’Leary were to be decided in the context of an early application to cease an inquiry against a respondent in respect of allegations made against him or her under the Act of 2000, additional factors would come into play over and above those considered or required to be considered by Kelly J. Firstly, the statutory mandate of the Committee to inquire, by hearing all evidence both from complainant and respondent and any other witnesses would be of paramount consideration. It is my view, that in circumstances where there is a statutory mandate and direction to continue an inquiry in relation to all available evidence, the inquiry should not be halted in respect of any complaint by reason only of the criterion “as a matter of probability (the inquiry) may amount to an assertion encountered by bare denial”, as posited in Kelly v. O’Leary. Secondly in the case Kelly v. O’Leary, the learned trial judge did not have the possibility of considering the influence of a requirement of corroboration and how this would effect his assessment of an allegation countered by bare denial.

While the facts of the case Kelly v. O’Leary may typify many of the complaints to be investigated at Phase I of the Committee’s work in respect of respondents, dead, incapacitated or alive, I consider that in the context of the statutory framework the requirements of natural and constitutional justice highlighted and applied to this particular set of facts are sufficiently met in all but the most exceptional cases before the Committee by an assessment when all the evidence has been heard in Phase I as to whether a finding against a respondent is safe. Indeed it is axiomatic that when all the evidence is heard in a dispute the risks envisaged in a preliminary application and allowed to influence the court in an application such as Kelly v. O’Leary are in fact tested and realised. If on such testing and realisation, risks which are found to have been properly foreseen become facts upon which the safety of a decision in accordance with the principles of natural and constitutional justice can be assessed. Therefore, I consider that the criterion for the halting of the inquiry and not proceeding to a determination and finding against a respondent should, in the context of the inquiry by the Committee, be dependant on the question as to whether it would be unsafe to make such a determination as suggested by the Committee.

I have considered the cases relating to halting prosecutions by way of injunction or prohibition of the court where there has been delay on the part of the victim in reporting the alleged crime. These cases have many parallels with the civil cases but it must be remembered that the balance between the right to a fair trial and the right of the public and the complainant to have the complaint heard are brought into balance in a context which is much different and favours the respondent much more than in civil cases and indeed much more again than in the case of a respondent before the Committee. These criteria are set out in the judgment of Keane C.J. on pp. 93 and 94 of his judgment. I need not set them out here except to say that in one respect, these criteria favour the respondent before the inquiry and that it has been agreed by all parties. That the issue as to whether the respondent caused the complainant’s delay by reasons of domination or other activity is not an irrelevant consideration within the code of the Act of 2000. Notwithstanding the lack of domination being a factor militating against the respondent within the code of the committee, I consider that in view of the fact that the cases in criminal delay deal with an inquiry which as a matter or probability will be finally determined as to the facts by a jury who will sit and deliberate in the final analysis without any record of their deliberations or any means by which their deliberation may be tested (except in extreme cases) against the directions as to the law given by the trial judge. This secret aspect of the deliberations of the jury are in vital contrast with the deliberations of the Committee insofar as the Committee have an obligation to keep records in accordance with the requirements of the Act of 2000.

An examination of the jurisprudence relating to delay in criminal trials therefore strengthens me in my conclusion reached above on the examination of its closely related civil counterpart.

In reaching the foregoing conclusions I have borne in mind a submission which acquired its form to some extent during the oral submissions in court on behalf of the first named defendant relating to the assertion that the statutory mandate of the Committee to conduct an inquiry extended as far as the Committee “finding enough” cases upon which a meaningful inquiry could be continued at Phase II. There was a further version of this argument which, although less crude, reflected the introduction of a certain quantitative type of thinking in the submissions and. That related to the recognition of the applicability of the jurisprudence of the courts in relation to delay as a type of template, but that in view of the statutory mandate and the inquisitorial delay of the nature that that template would have to be raised sufficiently to allow what could be regarded as a critical mass of cases to facilitate inquiry at Phase II. I strongly disagree with such a quantitative approach and consider that the issue should be decided (as I have sought to do in this judgment) on the balancing of rights in accordance with the principles emerging from the jurisprudence on delay, the Act of 2000 and the principles of constitutional and natural constitutional justice arising from the cases referred to.

It is further submitted that the case of Borges v. Fitness to Practice Committee of the Medical Council (Unreported, High Court, Ó Caoimh J., 5th March, 2003) was an example of a situation where the High Court prohibited an inquisitorial body from proceeding to her a complaint in a particular way at the outset of the proceedings. I find that the situation of The Fitness to Practice Committee in that case may be distinguished fundamentally from that of the Committee under the Act of 2000, insofar as The Fitness to Practice Committee were determining matters which were of immediate and consequence serious to the plaintiff in that case. The procedure under The Fitness to Practice Committee had attributes which more closely resembled a forensic inquiry. Also, the Law Reform Consultation Paper on Public Inquiries including Tribunals of Inquiry, pointed out that there were significant differences between tribunals such as disciplinary tribunals and tribunals for the purpose of determining issues between parties in the administrative field and tribunals which had a more extended remit of fact finding such as tribunal set up as the resolution of both houses of the Oireachtas or the Commission and its committees set up under the Act of 2000.

POWER OF TRIBUNAL TO GIVE RULING
I am satisfied that on the authority of Haughey v. Moriarty [1999] 3 IR 1 the Commission and the Committee have a power to give a preliminary ruling. This power is to be implied additionally from the statutory requirement to make regulations relating to procedure given to the Commission. I make this finding conscious of the fact that the argument was probably as a prelude to arguing the constitutionality of the Act of 2000 but nevertheless from the abundance of caution I am now giving the ruling.

ALLEGED BIAS ARISING FROM ADVICE PRIOR TO

LEGISLATION.
It is well accepted in this jurisdiction that parliamentary debates and explanatory memoranda are not admissible for the purpose of construction and interpretation of statues. This is in distinction from the use of preparatory materials to interpret legislation in the civil code in European jurisdictions. An example of this latter course, in this jurisdiction, is where a convention such as the Brussels Convention is incorporated into Irish law. I know of no Irish judge who disqualified himself or herself from hearing a case dealing with legislation considered and voted in some way by them as a member of the Oireachtas. For these reasons and again on the basis of the abundance of caution the argument was used only to set up a constitutional argument, I find that whatever consultative role the Commission had as a non-statutory body in relation to the development of the policies incorporated into the Act of 2000, are not matters which can give rise to any bias however defined.

CROSS-EXAMINATION

In view of the importance of cross-examination for the purpose of insuring fair procedures and constitutional justice set out in Maguire v. Ardagh, I consider that the submissions on behalf of the plaintiffs that the representatives of the dead and the plaintiffs’ congregation seeking to defend their derivative interest under the dead and the incapacitated and untraceable, were under a serious disadvantage in relation to the procedures suggested by the Final Ruling and procedures of the Committee by requiring a statement from the respondent as a precondition for the right to cross-examine. I am not certain that the submissions of the defendant accepted that this was so and certainly counsel for the Commission gave examples of what might happened in relation to cross-examination by the representative of the congregation in relation to a complaint against a deceased or incapacitated member to show how the Final Ruling and its procedures would work in practice. However, I accept that there is at least ambiguity in relation to the right of the representatives (however defined) of the deceased and incapacitated to cross-examine by reason of the redirects of the final ruling of a narrative statement from a narrative statement respondent. In considering this question I accept that a tribunal of inquiry such as the Committee has a right to arrange its business so that there is not the multiplicity of representatives seeking to cross-examine every witness on purpose, these representatives seeking to cross-examine may be required to show the intended scope of the cross-examination. I consider that the right of the representative of the deceased and incapacitated to cross-examine (notwithstanding difficulties in obtaining the fullest instructions for such cross-examination) is vitally important for insuring the operation of fair procedures and constitutional justice in the context of inquiries by the Committee. The issue is dealt with I Fennell’s The Law of Evidence in Ireland, 1st Ed., at p. 74 as follows:-

“The strength of the entitlement and basis for cross-examination, and its centrality to our process of legal adjudication, is illustrated by the decision of Declan O’Broin v. District Justice Jarlath Ruane and the Attorney General [1989] I.L.R.M. 732. The applicant herein was arrested under section 21 of the Road Traffic (Amendments) Act, 1978, which provides that it shall be presumed, until the contrary is proven, that the statutory procedure has been complied with.
The applicant’s solicitor cross-examined the prosecuting Garda Sergeant in regard to compliance with section 21. Objection by the prosecution to the effect that such a general question was not permissible having regard to subsection 4, was upheld by the District Justice.
Lynch J. in the High Court however, held that although cross-examination was ‘a fishing cross-examination’ in the sense that the solicitor for the applicant was not in the position to show any particular non-compliance with section 21 unless something should be elicited in the course of same; it should be allowable. Lynch J. was of the opinion that:
‘it seems to me…that the defending solicitor entitled to inquire in a general way as to what happened to his client form the time he was brought to the Garda Station in relation to the taking of specimens and the treatment of such specimens in order to see whether compliance with section 21 was observed. I think he may do this in a general way…of course on the other hand the District Justice must be entitled to control cross-examination and keep it within reasonable bounds. If, for example, the general sort of cross-examination seem to go on repetitively, the District Justice, would clearly be entitled to say: that’s enough of that. You have made your point. But he must allow some reasonable general inquiry as to what procedures were in fact done and followed in the Garda station so that the defending solicitor, even in the absence of any specific allegation of a contravention of the requirements of section 21, made sure that these requirements were complied with’.”
I consider that this passage is equally applicable to cross-examination on behalf of the representatives (however defined) of the deceased and incapacitated in Phase I of the Inquiry and in view of the importance of the matter in ensuring fair procedures, I consider that it is appropriate to make a declaration in that regard.

AGGREGATION OF EVIDENCE

Aggregation of evidence is not known as a term of art to the law in this country. As presented by the Final Ruling it appears that the device might be used to seek corroboration from multiple events where there is no corroboration in law. Counsel for the Commission clarified the intentions of the Commission that this would not be so. The clarification should be formalised in further interpretation of terms of reference.

CONSTITUTIONAL ISSUE

As I have not found that the application of the Act of 2000, in accordance with principles of procedural fairness and constitutional justice, involves a construction which is contrary to the Act, I consider that it is inappropriate to give judgment in relation to the constitutional arguments raised on behalf of the plaintiff and I do not propose to do so.

RELIEF

I refuse all declaratory relief sought except in relation to the declarations set out hereunder. These declarations may not fit into any particular pleading category but, nevertheless, I consider that in the interests of justice and having regard to the doctrine of judicial restraint and the fact that it was acknowledged on all sides that the case was not a pleading case, and was dealt with by counsel for the defendant during the course of their submissions by an attempted summary of the issues and by me in this judgment in similar vein. I propose to make the following declarations following the requirement in Haughey v. Moriarty

1. A declaration that the Committee provide the parties to the inquiry with an interpretation of the terms of reference provided by the Act of 2000, insofar as it relates to the corroboration and testing of evidence of witnesses including complainants and respondents.
2. A declaration that the Committee extends its final ruling by a further interpretation of its terms of reference under the Act of 2000, so as to provide opportunities and procedures for the representatives of the deceased and the congregation and the incapacitated to cross-examine witnesses in the interests of fair procedures and constitutional justice.
3. A declaration that the Committee extends its final ruling by a further interpretation at its terms of reference and the Act of 2000, to incorporate the clarification of counsel from the first named defendant to the court regarding the so called aggregation of evidence.
Upon delivering judgment herein I invited the parties to make submissions to the form of order to be made and any further submissions for the purpose of clarification of any matters arising and it was submitted on behalf of the plaintiffs that the Court would make such further declarations in relation to findings of ultra vires or intra vires as would reflect the foregoing judgment, and, that as the Court had found the preliminary ruling and framework document to be intra vires, the Act (in some respects at least), the Court should then go on to consider the constitutionality of the Act, in accordance with case pleaded and argued by the plaintiffs.

ULTRA VIRES ISSUE

Dealing with the proposed declarations one to three which I consider reflect my consideration of the case made to me by the plaintiffs, I find that I cannot envisage making a declaration of ultra vires by reason of the fact that the interpretation of the terms of reference provided by the Act of 2000 did not go far enough in setting out in detail, the understanding of the first named defendant of the Act of 2000, as it related to corroboration or the first named defendants understanding of the detail of the testing of evidence. The preliminary ruling and the framework document are not ultra vires the Act in relation to these two aspects insofar as they go. However, as I consider that the question of the development of the criteria for corroboration and testing of evidence in the terms of reference are so fundamentally important to ensuring fairness of procedures based on natural and constitutional justice for any brother living or dead affected by the inquiry that I am prepared to make a declaration in the following form:-

“4. A declaration that the Committee is acting ultra vires the Act without providing an interpretation of the terms of reference provided in the Act insofar as it relates to the corroboration and testing of evidence of witnesses including complainants and respondents.”

In relation to the finding of the Court the requirement that a brother would furnish a statement as a pre-condition to the right to cross-examine a witness I find that Declaration No. 2 may be mirrored appropriately by the following further declaration by way of clarification:-

“5. A declaration that the final ruling and framework document of the Committee is ultra vires the Act in the case of inquiries in relation to allegations of abuse against brothers who are dead, untraced or otherwise incapable by reason of age, infirmity or loss of memory in giving instructions by reason of the requirement that the respondent must furnish a written statement as a pre-condition to the right to cross-examine witnesses.”
In relation to the third declaration, it is inappropriate to make any declaration of ultra vires in relation to the aggregation of evidence in view of the clarification by counsel to the first named defendant.

CONSTITUTIONAL ISSUE

Whereas at the outset of the proceedings counsel for the plaintiffs invited the Court to hear the arguments in relation to the claimed unconstitutionality of the Act, it was made clear that the Court was not being asked to adjudicate on such arguments unless it refused to hold that the preliminary ruling and framework documents proposed a procedure which was ultra vires the Act, nevertheless counsel for the plaintiffs argued that insofar as the ruling of the Court was that many of the matters challenged, particularly the right of the Committee to proceed under the Act in respect to complaints made against deceased and persons under a capacity were intra vires the Act, that the Court would give its opinion in relation to the constitutionality of the Act as affected by these issues. I sympathise with this latter submission and I am prepared to act so as to facilitate the interests of the plaintiffs in having an adjudication of the Court in relation to certain constitutional issues which may arise on appeal from this Court.

I do so for two reasons, firstly I have found that for the Committee to proceed with a complaint against the deceased brothers is intra vires the Act and this is fundamentally contrary to the case argued on behalf of the plaintiffs, and secondly, by reason of the fact that both parties requested me from the outset to refrain from acting with judicial restraint in relation to the issue by reason of the public importance and urgency of having the inquiry of the Committee and work of the first named defendant continue without protracted delays by a re-submission of the constitutional issues to the Court.

I deal with the issues in relation to the constitutionality arguments as follows.

Locus standi.
Whereas I have held that the plaintiffs’ claim for the declaratory relief in relation to the ultra vires issue is not premature, the same arguments do not apply to the standing of the plaintiffs or the persons they represent as persons whose constitutional rights are to be denied by an operation of the Act. In examining the constitutionality of the Act, the double construction rule is to be applied as set out earlier in this judgment and in the arguments of the parties. It is to be presumed that Act will be applied in a constitutional way having regard to the requirements of fair procedures and natural and constitutional justice. It is a fundamental aspect of this judgment in relation to the ultra vires issue the Act provides important balance and safeguards in terms of a requirement of corroboration of evidence to ensure such fair procedures and compliance with natural and constitutional justice, in the same way as is achieved by the Courts in litigation relating to claims against deceased persons as analysed by me earlier in this judgment. In examining the constitutionality of the Act I may only assume that the Committee will, having regard to the judgment of the Court, attend to expanding and clarifying the terms of reference in relation to these matters to ensure constitutional and natural justice. The dictum of Hamilton C.J. in Haughey v. Moriarty [1999] 3 IR 1 at p. 75, referred to by me in rejecting the prematurity of the plaintiffs’ claim in relation to the ultra vires issues, does not go far enough to override the necessity to make the presumption that the Committee will eventually abide by the rules of natural and constitutional justice and provide for fair procedures. It was not argued by the plaintiffs that the Act prevented the Committee from stopping an inquiry in relation to a complaint by reason of prejudice suffered by death, delay or incapacity at an earlier stage of the inquiry and before all investigations were complete, nor was it argued that the Act did not empower the Committee to refuse to make a finding against a deceased or incapacitated person at the conclusion of the inquiries by reason of prejudice ultimately found by the Committee making it unsafe to decide against a respondent. The application of the Act envisaged by the Court therefore does not displace the presumption of constitutionality, and therefore I consider the plaintiffs do not have a locus standi to seek to have the Act declared unconstitutional, insofar as I find that their rights or the rights of those they represent are not denied by the Act itself and may be protected by a full explanation of terms of reference of the Committee.

If I am incorrect in the foregoing view I am of the opinion that the Act is not in violation of the doctrine of separation of powers as provided for in Article 6 of the Constitution insofar as it amounts in substance to a bill of attainer bill of pains and penalties. The basis for such argument is that such inquiry could result in an adverse finding against the dead and incapacitated who are denied an opportunity to cross-examine as required by Maguire v. Ardagh. I find that while the dead and the persons suffering from an incapacity may not cross-examine as successfully as a person of full capacity, the right to cross-examine is no more denied to them than to similar persons in ordinary litigation. Moreover the disadvantage suffered by such persons is considerably balanced by the introduction of a statutory mandate for the Committee to seek corroboration as appropriate. Even if there were some attenuation or diminution of the constitutional rights of such persons by reason of a less advantageous position to cross-examine this is more than balanced by the statutory mandate and requirement to seek corroboration as appropriate.

I accept the submissions of the defendants that such a disadvantage on the part of the deceased or the representatives or persons suffering an incapacity to cross-examine has never been the subject of charges of constitutional inadequacy or of constitutional sanction. As an example (and notably in the statutory sphere), the Statute of Limitations, 1957 and The Civil Liability Act, 1961, permitting actions to proceed against deceased persons have never been found to be unconstitutional, in this respect, although the subject of constitutional attack in other areas. In the more modern context s. 29 of the Family Law Act, 1995 relating to declarations as to marital status envisages (at least implicitly) that such declarations may be sought and granted by the courts in relation to the marital status of deceased persons who would otherwise satisfy the jurisdictional requirements of that Act.

On the basis of Desmond v. Glackin, already referred to, I find that the Act does not provide retroactive penal legislation insofar as the inquiry in relation to the complaints of the complainants could have been carried out earlier, either under the management of the institution and the Department of Education, or under the jurisdiction of the criminal courts in relation to the more serious allegations, if the allegations had been made earlier.

The Act does not offend against the guarantee of equal protection and the guarantee of equality before the law as envisaged by Article 40.1 of the Constitution. Any of the complaints were capable of being made against any deceased or incapacitated person at the time when the alleged complaints took place. The legislation does not introduce difficulties caused by death or incapacity. These are events which equally apply to all citizens and not as a result of any inequality introduced by the Act.

I find that the guarantees of the Constitution of Ireland under Article 40.3.1 and 40.3.2 guaranteeing the right to basic fairness of procedures have not been breached by the alleged disadvantage of the plaintiffs in the attempted investigation of the dead, the disabled, the unlocated and the disadvantaged, or the alleged right of cross-examination being further circumscribed, apart altogether from the impossibility of taking instructions, for the reasons that fairness of basic procedures is guaranteed by (a) statutory requirement of corroboration as appropriate, (b) the commitment of the Committee to test the evidence as appropriate, (c) the acknowledged right and inability of the Committee to stop the inquiry either exceptionally at the outset, or at a concluding stage of the inquiries, by reason of prejudice arising from delay, death or disability using the standards of jurisprudence evolved by the Courts in civil and criminal litigation. In conclusion, if compelled to do so, I find no reason advanced by the plaintiffs to displace the presumption of constitutionality of the Act and would find the Act to be consistent and in accordance with the Constitution.