FACTS.
(1)
On the 23 April 1993 nine warrants for the arrest of one Father John Gerard
"Brendan" Smyth were issued in Northern Ireland. They related to sexual
offences alleged to have been committed by the accused in Northern Ireland
between the years 1982 and 1987. The warrants were forwarded to the
Commissioner of An Garda Siochana for execution by him pursuant to the
provisions of the Extradition Act, 1965 (as amended), the accused at that time
being resident in the State. He, in turn, forwarded them to the office of the
Attorney General (as he was required to do under the Act) where they were
received on the 30 April 1993. Under the provisions of the Act, as amended
(provisions which will be considered in greater detail later) the Attorney
General is required to give a direction that the Commissioner should not
endorse the warrants for execution unless the Attorney General, having
considered such information as he considers appropriate, is of the opinion that
(a) there is a clear intention to prosecute or to continue the prosecution of
the person whose extradition is requested and (b) such intention is founded
upon the existence of sufficient evidence.
(2)
The plaintiff in these proceedings and other members of her immediate family
and relatives had been victims of the accused's sexual crimes to which the
warrants related.
(3)
Before the Attorney General had given any direction to the Commissioner
relating to the endorsement of the warrants the office of the Attorney General
was informed on the 6 December 1993 that the accused intended to return to
Northern Ireland to stand trial in respect of the charges referred to in the
warrants. He did so on the 21 January, 1994, on which day he appeared at
Belfast Magistrates Court. On the 28 June 1994 he was convicted at Belfast
Crown Court of 17 charges of sexual abuse (in respect of some of which the
plaintiff had been a victim) and was sentenced to 4 years imprisonment.
(4)
By summons of the 1 June 1995 the plaintiff instituted these proceedings in
which she joined Ireland, the Attorney General, and the Government of Ireland
as defendants. In her Statement of Claim she pleaded that the Attorney General
owed her a duty of care and/or "a constitutional obligation" to consider the
execution requests and speedily to process same in order to ensure that the
said Father Smyth was quickly brought to justice". It was claimed that in
breach of the said duty of care and in breach of the said constitutional
obligation the Attorney General "wrongfully and without lawful excuse failed,
neglected and refused to endorse the said warrants for execution within the
State", (paragraph 10). It was further pleaded that a similar statutory duty
was imposed on the Attorney General by the provisions of the Extradition Acts
1965 and 1987 (paragraph 11). She claims that as a result of the breaches of
duty, breaches of constitutional obligation and duty and breach of statutory
duty she suffered loss and damage and that the loss and damage was a
foreseeable consequence of the wrongful acts and omissions of the Attorney
General (paragraph 12). She says that the failure to "endorse the warrants for
execution and the delays in bringing the accused to trial caused her enormous
shock and distress, that the continuing emotional upset and stress and
consequential psychiatric problems caused by the sexual abuse were greatly
aggravated by the failure of the Attorney General to take adequate steps to
endorse the warrants for execution and bring the perpetrator of the offences to
justice. She claims damages for the personal injuries she suffered.
(5)
A defence denying liability was filed on behalf of the defendants on the 10
July 1995.
PRELIMINARY
ISSUES:
On
the 11 November 1996 it was ordered that without further pleadings the
following preliminary issues should be tried;
(a)
Whether the second named defendant (the Attorney General) owed to the plaintiff
a duty of care at common law to consider the said request as is alleged by the
plaintiff at paragraph 10 of the Statement of Claim.
(b)
Whether the defendants or any of them owed to the plaintiff a constitutional
duty or obligation under Article 40.3 and/or Article 41 of the Constitution of
Ireland or otherwise to consider the extradition request the subject of these
proceedings and to process speedily the said request as is alleged by the
plaintiff at paragraphs 10 and 13(a) of the Statement of Claim herein.
(c)
Whether the second named defendant owed to the plaintiff a duty by reason of
the provisions of the Extradition Acts, 1965-1987 (and in particular by reason
of
section 2 of the
Extradition (Amendment) Act, 1987) to consider the
extradition request the subject of these proceedings and to process speedily
the said request as is alleged by the plaintiff at paragraph 11 of the
Statement of Claim herein".
EXTRADITION
ACTS.
To
adjudicate on these issues I must firstly refer to the relevant statutory
provisions.
The
Extradition Act, 1965.
Special
arrangements are made in Part 3 of the 1965 Act relating to the extradition of
accused persons pursuant to requests from inter alia Northern Ireland. Where a
warrant has been issued by judicial authority in Northern Ireland for the
arrest of a person accused in Northern Ireland of an offence as specified in
the section and if on production of the warrant to the Commissioner of the
Garda Siochana it appears to the Commissioner that the person named in the
warrant may be found in this State then the Commissioner is required, subject,
to the provisions of Part III of Act, to "endorse the warrant for execution"
(section 43).
The
Act contained restrictions on endorsement in section 44 which are not relevant
for the purposes of this case. But a further restriction was enacted by
section
2 of the
Extradition (Amendment) Act 1987 which amended Part III of the 1965
Act by inserting new sections as follows;
Section
44(A).
This
provides that a warrant for the arrest of a person accused of an offence in
Northern Ireland "shall not be endorsed for execution under this part if the
Attorney General so directs".
Section
44(B).
This
provides that a direction of the Attorney General under section 44(A) not to
endorse the warrant.
"shall
be given unless the Attorney General, having considered such information as he
deems appropriate, is of the opinion that --
(a)
there is a clear intention to prosecute or, as the case may be, to continue the
prosecution of, the person named or described in the warrant concerned for the
offence specified therein in a place in relation to which this Part applies, and
(b)
such intention is founded on the existence of sufficient evidence".
I
have the following observations to make on these provisions;
The
plaintiff has pleaded that the Attorney General was under a duty "to endorse
for execution within the State all extradition warrants emanating from within
the United Kingdom" and it was further pleaded that he failed to endorse the
warrants referred to in the pleadings. This is not an accurate description of
the Attorney General's functions. The endorsement of the warrant is made by the
Commissioner (section 43) but he may not make the endorsement unless the
Attorney General directs him to do so. The Attorney General's function under
section 44(B) is to reach the opinion referred to in that section and under
section 44(A) to give or not to give the direction as the case may be. I will
examine this section in greater detail later in this judgment.
THE
FIRST ISSUE.
(a)
A duty of care at common law.
The
first issue is whether in the exercise of his statutory function the Attorney
General owed a duty of care at common law to the plaintiff. It has been agreed
by the parties that I should determine this issue in accordance with the
principles established in Ward v McMaster (1988) IR 337.
This
was a case in which it was alleged that a housing authority owed a common law
duty of care to the plaintiff in the exercise of its powers under the
Housing
Act 1966. Briefly, what had happened was this. The plaintiff had purchased a
bungalow from the first named defendant, who had built it. The plaintiff did
not have it professionally surveyed but had applied to the defendant housing
authority for a loan under the 1966 Act. This had been granted and secured by
way of mortgage. The housing authority retained a valuer to value the premises
but he had no qualifications in building construction and he found no defects
in them, reporting that they were in good repair and worth £25,000. This
was wholly erroneous. After the plaintiff went into occupation the bungalow was
found to be seriously defective, a qualified engineer concluding that it was
structurally unsound, a source of danger and a risk to health. He advised the
plaintiff and his wife to abandon it and they did so. The plaintiff sued the
builder/vendor, the Council and the valuer. He succeeded against the
builder/vendor and the Council but not against the valuer. The Council's appeal
to the Supreme Court was dismissed.
As
will appear later the courts conclusions were based on the provisions of the
Housing Act 1966 and the regulations made thereunder and I should briefly refer
to them. The 1966 Act empowered a housing authority to lend money for the
purpose of acquiring or constructing a house. Regulation 12 of regulations
adopted in 1972 required that a housing authority, before making a loan, should
be satisfied that the value of the house was sufficient to provide adequate
security for the loan, "the value of the house" for the purpose of the
Regulation being the amount which in the opinion of the housing authority the
house if sold on the open market might reasonably be expected to realise. The
scheme adopted by the defendant housing authority to implement its statutory
powers provided that no advance would be made by the Council until it was
satisfied as a result of the Council's valuer as to the actual value of an
existing house. The scheme also made clear that applications for loans under
the Act of 1966 would only be considered by persons who were unable to obtain
loans from commercial agencies and whose circumstances would otherwise
necessitate their being re-housed by the Council.
In
his judgment (with which the Chief Justice and Griffin J agreed) Henchy J
pointed out that it was necessary for the plaintiff to show that the
relationship between him and the Council "was one of proximity or neighbourhood
which cast a duty on the Council to ensure that, regardless of anything left
undone by the plaintiff, he would not end up as the mortgagor of a house which
was not a good security for the amount of a loan". He pointed out that the
Council should have realised that it would be in breach of their statutory
functions if they granted a loan for the purchase of a house which turned out
to be uninhabitable, that the consequences to the plaintiff of a failure on
their part to value the house properly should have been anticipated by the
Council, that a borrower like the plaintiff could not have reasonably been
expected to incur the expense of a structural survey of the house, that the
Council should have foreseen that the plaintiff's attitude would be, that the
Council would have the house approved by a surveyor and he concluded that "in
the light of the special relations between the plaintiff and the Council I
consider that apart from their public duty in the matter the Council owed a
duty to the plaintiff to ensure by a proper valuation that the house would be a
good security for the loan" (p 342).
In
his judgment (with which the Chief Justice, Walsh J and Griffin J agreed)
McCarthy J referred in detail to the loan scheme and then reviewed the
authorities in Northern Ireland and in England and Australia to which he had
been referred. In particular he referred to Anns v Merton London Borough (1978)
AC 72 and to a well-known passage in the judgment of Lord Wilberforce (at pages
751 and 752) (which he stated he did not "seek to dilute") as follows:-
"the
position has now been reached that in order to establish that a duty of care
arises in a particular situation, it is not necessary to bring the facts of
that situation within those of previous situations where a duty of care has
been held to exist. Rather the question has to be approached in two stages.
First one has to ask whether, as between the alleged wrong doer and the person
who has suffered damage there is a sufficient relationship of proximity or
neighbourhood such that, in the reasonable contemplation of the former,
carelessness on his part may be likely to cause damage to the latter -- in
which case a prima facie duty of care arises. Secondly, if the first question
is answered affirmatively, it is necessary to consider whether there are any
considerations which ought to negative, or to reduce or limit the scope of the
duty or the class of persons to whom it is owed or the damage to which a breach
of it may give rise".
The
judgment of McCarthy, J then went on to review the views expressed in later
cases in England which analysed the test propounded by Lord Wilberforce and
heavily qualified it as well as Court's decision in the case. He rejected these
criticisms and went on (p 349).
"Whilst
Costello, J essentially rested his conclusions on the "fair and reasonable"
test, I prefer to express the duty as arising from the proximity of the parties
the foreseeability of the damage, and the absence of any compelling exemption
based upon public policy".
Turning
to the issue as to whether or not the housing authority owed a duty of care to
the plaintiff he pointed out that the proximity of the parties was clear, that
they were intended mortgagors and mortgagees, that the proximity had its origin
in the
Housing Act 1966 and consequent loan scheme, that
the Act imposed a
statutory duty on the Council and it was in the carrying out of that statutory
duty that the alleged negligence took place. He went on;
"It
is a simple application of the principle in Donoghue v Stevenson
(1932) AC 562
confirmed in Anns v Merton London Borough (1978) AC 72 and implicit in Siney v
Corporation of Dublin (1980) IR 400 that the relationship between the first
plaintiff and the County Council created a duty to take reasonable care arising
from the public duty of the County Council under the statute. The statute did
not create a private duty but such arose from the relationship between the
party".
Turning
then to the issue of "reasonable foreseeability" he concluded that the officers
of the Housing Authority ought to have contemplated that the breach of duty of
care would cause the plaintiff injury and that as there were no considerations
to negative or limit the scope of the duty the plaintiff was entitled to
damages for its breach.
The
parties in the present case have, as I have said, agreed that I should approach
this case by applying the test approved by McCarthy, J and consider whether (a)
there was a relationship of proximity or neighbourhood between the Attorney
General and the plaintiff, (b) if so, whether the relationship was such that in
the reasonable contemplation of the Attorney General carelessness on his part
would be likely to cause damage to the plaintiff and (c), if these questions
are answered affirmatively are there any considerations which ought to negative
reduce or limit the scope of the common law duty of the Attorney General.
Before
doing so there are two observations I should make about Ward v McMaster.
(1)
I am, of course, aware that subsequent to the decision in Ward v McMaster
criticisms made of it and the test suggested by Lord Wilberforce in the English
courts to which reference was made in the judgment of McCarthy, J. These were
carried a step further by the House of Lords in Murphy v Brentwood
[1991] AC 398 in which the Anns decision was overruled and it was decided that the House
of Lords should depart from Anns "insofar as it affirmed a private law duty of
care to avoid damage to property which causes present or imminent danger to the
health and safety of owners or occupiers, resting upon local authorities in
relation to their function of supervising compliance with building by- laws or
regulations . . ." (p 457). Irish law has therefore parted company with English
law but I am by no means certain that the departure is a major one. The view of
the Irish courts has been that Anns was a "confirmation" of the long
established principles of the law of tort contained in Donoghue v Stevenson and
was not (as some commentators in England seem to consider) a major innovation
in the law of tort.
(2)
Secondly, as Ward v McMaster makes it clear, when the court is required to
consider whether a duty of care at common law arises in the exercise of
statutory duties, powers or functions the issue is largely determined by the
scope and nature of the relevant statutory provisions. This is underlined in
two decisions in which the principles established in Ward v McMaster were
considered in the Supreme Court.
Sunderland
v Louth County Council (1990) ILRM 658 was a case in which the Supreme Court
again had to consider whether a common law duty of care was imposed on a local
authority -- this time in its capacity as a planning authority. The Louth
County Council had granted permission for the erection of a dwelling house to a
person who had no building experience. When the house was built he decided to
sell it. It was then discovered that the planning permission did not apply to
the site on which the house had been built and he applied for and obtained
permission for retention of the house. The plaintiff purchased the house from
the builder but because of the unsuitability of the site on which it was built
and the manner in which the septic tank had been constructed the house and
garden were liable to flooding and the house proved uninhabitable. The
plaintiff sued the architect (who had reported on the condition of the house)
and the Council. The claims against both defendants were dismissed and the
plaintiff's appeal to the Supreme Court against the decision to dismiss the
claim against the Council. The appeal failed. The unanimous decision of the
court was delivered in a judgment by McCarthy J. The court held that a planning
authority in the exercise of its powers under the
Local Government (Planning
and Development) Act 1963 owed no duty of care at common law towards the
occupiers of buildings erected in its functional area to avoid damage due to
defective sighting and construction. In arriving at this conclusion McCarthy, J
pointed out that the Council's liability to the plaintiff depended on the
relationship that existed between the plaintiffs and the Council, namely "was
it such as to establish a duty of care in favour of the plaintiffs as occupier
over and above such duty as rested upon the Council in respect of the public as
a whole, pursuant to its statutory obligations imposed on the Council by the
Planning Act". He pointed out that in Siney v Dublin Corporation a legal
relationship of landlord and tenant existed between the party and in Ward v
McMaster a mortgagor and mortgagee relationship existed, that in both these
cases the statutory duty of the local authority arose under the
Housing Act
1966 which, he said, was an act which "is demonstrable and unequivocally
designed towards the protection and improvement of the housing conditions of
persons who are not able by their own resources to provide it for themselves".
He pointed to the fundamental difference between planning legislation and
housing legislation and that the first is "regulatory or licensing according to
the requirements of the proper planning and development of the area" but the
second is a provision "in a social context for those who are unable to provide
for themselves". He observed that the "watchdog role" created under the
Planning Act is for the benefit of the public at large and that the Planning
Act was enacted to make provision in the interests of the common good for the
proper planning and development of cities towns and other areas". He concluded;
"The
Act in conferring statutory powers on planning authorities imposed on them a
duty towards the public at large. In my view, in conferring those powers the
Oireachtas did not include a purpose of protecting persons who occupied
buildings erected in the functional area of planning authorities from the sort
of damage which the plaintiffs have suffered. This being so, the Council in the
exercise of those powers, owed no duty of care at common law towards the
plaintiffs" (p 63).
The
same legal issue arose in Convery v Dublin County Council (Supreme Court,
unreported, 12 November 1996). In that case the plaintiff's claim against the
County Council arose from a serious traffic problem in the housing estate in
which she lived. She claimed that the very large volume of traffic amounted to
a nuisance and she claimed an order directing the Council to abate the
nuisance. She also claimed that the volume of traffic resulted from a breach of
duty of care which the Council owed to her at common law. She succeeded in the
High Court but lost in the Supreme Court. In the judgment of the court
(delivered by Keane, J), it was pointed out that the plaintiff could only
succeed if she established that the Council had been guilty of an actionable
tort and the court held that the Council could not be liable for a public
nuisance as the traffic did not originate in any premises owned or occupied by
the County Council and was not generated as a result of any activities carried
on by them on land in the area. "To treat the County Council, in these
circumstances as being the legal author of a public nuisance would be entirely
contrary to principle and wholly unsupported by authority".
As
to the claim founded on negligence, it was pointed out that the plaintiff had
to establish that a duty of care towards her existed. In deciding whether or
not such a duty existed the court referred to the decision in the High Court
and the judgment of McCarthy, J in the Supreme Court in Ward v McMaster.
Commenting on the judgment of the Supreme Court it was pointed out that;
"The
fact that the plaintiff belonged to a particular category of persons for whose
benefit the powers and duties of the housing authority under
the Act were to be
exercised -- ie applicants for loans who could not obtain such assistance from
commercial institutions -- was of critical importance in determining whether
they owed him a duty of care in the exercise of those powers and duties".
And
the judgment noted the sharp contrast in that case to the decision in
Sunderland v McGreevy where the court concluded that the statutory powers
created under the Planning Acts did not confer any duty of care at common law
towards the plaintiffs. Applying the principle adopted in Ward v McMaster the
court concluded that;
"The
plaintiff has failed to establish that there was a relationship between her and
the County Council which created a duty to take reasonable care arising from
their public duty under any statute. The powers and duties of the County
Council as planning authority and roads authority are vested in them in order
to ensure the proper planning and development of their area and the provision
and maintenance of appropriate road network in that area. Whilst the exercise
of those powers and duties can be regulated by the High Court by means of the
Judicial Review process so as to ensure that they are exercised only in
accordance with law, the plaintiff does not belong to any category of persons
to whom the Council, in the exercise of those powers owed a duty of care at
common law".
A
brief reference should also be made to Madden v The Irish Turf Club &
Others (Supreme Court, unreported, 17 February, 1997). This was a case in which
the plaintiff, unsuccessfully, claimed that the Irish Turf Club and the Irish
National Hunt Steeplechase Committee owed him a duty of care arising from a
"jackpot bet" he had placed on the tote at a race meeting on the 12 January
1989. The alleged duty did not arise from the operation of a statute and the
relevance of the case for present purposes is that in arriving at its
conclusion the Supreme Court, once again, applied the decision in Ward v
McMaster.
Finally,
on this aspect of the case, I should note two further decisions of the High
Court in which, once again, a plaintiff failed to establish a common law duty
of care arising from the exercise of statutory powers.
McMahon
v Ireland, the Attorney General, and the Registrar of Friendly Societies [1988]
ILRM 610 was a case in which the plaintiff had lodged money in a Friendly
Society which went into liquidation. A claim for damages for negligence was
brought against, inter alia, the Registrar of Friendly Societies. Blayney, J
(at page 613) pointed out that the first issue to be considered was whether the
Registrar owed a duty of care to the plaintiff and that this issue involved him;
"considering
whether there was a sufficient relationship of proximity or neighbourhood
between the Registrar and prospective depositors as to place the Registrar
under a duty of care towards persons came within that class, as did the
plaintiff".
The
court held that no such duty existed and the claim against him was dismissed.
John
C Doherty Timber Limited v Drogheda Harbour Commissioners [1993] 1 IR 315 was a
case in which the plaintiff claimed that the Drogheda Harbour Commissioners
owed it a duty of care in the exercise of their statutory duties as Harbour
Commissioners under the Harbour Act 1946. Under that Act they were obliged to
take all proper measures for the management, control and operation of their
harbour and all proper measures for the maintenance and operation of all works,
structures, bridges, equipment and facilities under their control (section 47).
The plaintiffs, who were timber merchants, had for many years received
consignments of shipments of timber at the port. Along with others they were
permitted to unload the timber and leave it on the quayside at the harbour. The
area was unenclosed and the public had access to it. A consignment of timber
was left by the plaintiff on the quayside for several days after it had been
unloaded when it was deliberately set on fire by children. The plaintiffs claim
that the Harbour Commissioners owed it a duty at common law failed. In the
course of his judgment Flood, J referred to the judgment of Lord Wilberforce in
Anns to the decision of McCarthy, J in Ward v McMaster and concluded as that
the reality of the relationship between the Harbour Commissioners and the
plaintiff was a bare permission which carried no further obligation of care on
the part of the defendant there was no common law duty of care imposed on the
Harbour Commissioners.
Conclusion.
My
conclusions on the issue as to whether or not the Extradition Acts has imposed
on the Attorney General a common law duty to the plaintiff to consider the
extradition request and process it speedily for breach of which the plaintiff
is entitled to damages for any injury she thereby suffered, or as follows;
(a)
The Extradition Act, 1965 (as amended) imposed no statutory duty on the
Attorney General in relation to victims of the crimes referred to in the
warrant which he was required to consider. The statute imposed a function on
him (not a duty or a power). His statutory function is (a) to consider whether
or not there is a clear intention on the part of the authorities in Northern
Ireland to prosecute the person named in the warrant for the offences with
which he is charged and (b) to consider whether such an intention (if it
exists) is founded on sufficient evidence (section 44(B)). Having satisfied
himself on these points he is then required to decide whether to give a
direction to the Commissioner under section 44(A). His function is a
professional one which the Oireachtas requires him to perform as part of the
extradition process relation to persons accused of crimes committed in Northern
Ireland. In considering whether or not there is a clear intention to prosecute
the person named in the warrant the circumstances of the victim of the crime
are in no way relevant. Likewise in considering whether or not the intention to
prosecute is founded on the existence of sufficient evidence the circumstances
of the victim are in no way relevant. The statute conferred a public
professional function on the Attorney General which created no relationship of
any sort between him and the victims of the crimes referred to in the warrants
he was considering. This is in striking contrast to the statutory provisions of
the
Housing Act 1966 which were designed to assist a class of persons and which
the Supreme Court held in Ward conferred a special relationship between them
and the housing authority which resulted in imposition of a common law duty of
care.
In
the absence of any relationship between the plaintiff and the Attorney General
I must hold that the Extradition Acts imposed no common law duty of care on the
Attorney General in relation to the plaintiff.
(b)
Public Policy and a common law duty of care.
There
is a further and compelling reason why the court should decide that no common
law duty of care existed in this case. Even if there had been a sufficient
relationship of proximity between the Attorney General and the plaintiff and
even if the kind of injury of which the plaintiff complains was reasonably
foreseeable in my opinion it would be contrary to public policy to impose a
duty of care on the Attorney General.
The
principles in Ward v McMaster (and indeed in the pre-Ward law of torts)
recognise that on the grounds of public policy the law may not recognise the
existence of a duty of care. Of course, only in exceptional cases will the
court deny a right of action to a person who has suffered loss on the ground
that it would not be in the public interest to allow it. In considering whether
the Attorney General should be protected from actions of negligence the court
is balancing the hardship to individuals which such a rule would produce
against the disadvantage to the public interest if such a rule existed. How the
court carries out this balancing exercise is illustrated in the judgments in
the House of Lords in Rondel v Worsley
[1969] 1 AC 191 in which the long
established immunity from actions for negligence which barristers enjoyed was
re-considered and justified on the grounds of public policy. In the course of
his judgment Lord Reid pointed out that every counsel has a duty to his client
to act fearlessly in his interests but that as an officer of the court
concerned in the administration of justice he has an overriding duty to that
court to the standards of his profession and to the public. A barrister must
not mislead the court, nor cast aspersions on the other party for which there
was no basis in the information in his possession, must not withhold
authorities or documents which may tell against his client but which the law or
the standards of his profession require him to produce. Because the barrister
is required to put his public duty before the apparent interest of his client
the public interest requires that on the grounds of public policy the
barristers immunity from suit be maintained (see pages 227, 228).
For
similar reasons Judges are immune from actions for negligence.
"The
freedom from action and question at the suit of an individual is given by the
law to Judges not so much for their own sake as for the sake of the public, and
for the advancement of justice, that being free from actions, they may be free
in thought and independent in judgment, as all who are to administer justice
ought to be". (Garnett v Ferrant) (1827) 6 B and C 611.
This
case was quoted with approval and applied recently in this country in Deighan v
Ireland [1995] 2 IR 56. The principles were again applied in England in which
it was held that on the grounds of public policy a duty of care ought not to be
imposed on police investigating a crime (Hill v Chief Constable of West
Yorkshire
[1989] AC 53. And, of particular relevance to the issues in this
case, it has been held in England that on the grounds of public policy the
Crown Prosecuting Service can not be sued in negligence (see Elguzuoli-Daf v
Commissioner of Police of the Metropolis
[1995] 1 All ER 833. The reasons why
this immunity should be granted were explained as follows (p 842);
"That
brings me to the policy factors which in my view argue against the recognition
of a duty of care owed by the CPS to those it prosecutes. Whilst it is always
tempting to yield to an argument based on the protection of civil liberties, I
have come to the conclusion that the interests of the whole community are
better served by not imposing a duty of care on the CPS. In my view such a duty
of care would tend to have an inhibiting effect on the discharge of the CPS of
its central function of prosecuting crime. It would in some cases lead to a
defensive approach by prosecutors to their multifarious duties. It would
introduce a risk that prosecutors would act so as to protect themselves from
claims of negligence . . ."
In
Canada the question of prosecutorial immunity from suit in an action for
malicious prosecution was considered by the Supreme Court in Nelles v Ontario
(60 DLR (Fourth) 609). Whilst referring to the authorities in Canada and in the
United States in which immunity from actions of negligence was conferred by the
courts on prosecutorial authorities the court held that immunity from an action
for malicious prosecution should not be granted. The case, however, did not
decide that such an immunity would not exist in relation to actions for
negligence.
Turning,
then, to the facts of this case it seems to me that the denial of a right of
claim for damages for negligence on the grounds of public policy arises from
the functions which the Attorney General is called upon to perform in the
public interest and the consequences on his ability properly to perform them
should the alleged duty exist. By conferring an important role on him in the
extradition process the Oireachtas has involved him in a significant way in
ensuring that a proper compliance with the State's international obligations in
the field of extradition is achieved. The statute requires him to weigh the
information made available to him relating both to the intention to prosecute
the person named in the warrant and also the evidence on which the intention to
prosecute is based and should the information he obtains not be sufficient he
is required to request further information. If in carrying out this function he
is also under a duty of care to the victim of the crime referred to in the
warrant not to delay there is a risk, which I do not think it is in the public
interest he should be asked to run, that a conflict may arise between the
proper exercise of his public function with the common law duty of care to the
victim which might result in an improper exercise of his statutory functions.
There
are further compelling reasons why in the public interest the duty claimed by
the plaintiff in this action should not be allowed. If a duty under the 1965
Act exists it must logically follow (a) that the Attorney General would be
under a similar duty in respect of any prosecutorial functions conferred on him
by
section 5 of the
Prosecution of Offences Act, 1974 (b) that in exercising
his prosecutorial functions under that Act the Director of Public Prosecutions
would owe a like duty to all victims of crimes in the cases in which he is
considering the institution of prosecution. Because of the inhibiting effect on
the proper exercise by the Attorney General and the Director of Public
Prosecutions of their prosecutorial functions it would be contrary to the
public interest that a duty of care at common law be imposed on them. So to
conclude is not to submit to a "flood gates" argument of doubtful validity --
it is to accept the logical consequences should the duty of care at common law
be imposed in the execution by the Attorney General of his functions under the
1965 Act.
In
reaching these conclusions I have not ignored the arguments advanced on the
plaintiff's behalf. It was urged that to impose an immunity on the Attorney
General against claims for damages for negligence would be contrary to the
State's constitutional obligations as established by the Supreme Court in Ryan
v Ireland [1989] IR 177). This, however, was not a case in which issues
relating to immunity from suit on public policy grounds arose. The plaintiff, a
soldier injured in the Lebanon whilst serving in the United Nations force sued
Ireland and the Minister for Defence for damages for negligence. The issue was
whether under Irish common law an immunity from suit by a serving soldier in
respect of operations consisting of armed conflict existed. The court held that
no such immunity existed but that if it did it would be inconsistent with the
States guarantee to respect and vindicate the personal rights of the citizen
under Article 40 of the Constitution. The Supreme Court did not decide that in
no case could the law confer immunity from suit on a constitutional officer
and, as already pointed out, the Irish courts have recognised the validity of
such a rule in relation to Judges carrying out their judicial functions. Laws
may limit the exercise of protected rights and in each case when the claim is
raised it is a question for the court to decide where, in the interests of the
common good, the balance should lie.
It
was further argued that even if the Attorney General was immune from suit on
the grounds of public policy this did not necessarily deprive the plaintiff of
a claim for damages against the State arising from his negligent act. Reference
was made to the case of Walsh v Ireland and the Attorney General (unreported,
Supreme Court, 30 November 1994) in which the plaintiff successfully sued
Ireland for damages as being vicariously liable for the negligent act of
members of the Garda Siochana in arresting the plaintiff on foot of a warrant
issued by someone bearing the same name as the plaintiff. It was argued that a
victim like the plaintiff in the present case who suffered injury due to the
negligent act of the Attorney General should be at liberty to sue the State
even though an action against him personally was not maintainable. This would
clearly be a novel form of immunity. It would mean that the wrongdoer (in this
case the Attorney General) would be immune but the State (assuming the State's
liability being a vicarious one or direct if the wrongdoer was an organ of the
State) would not be immune. But it is an argument which does not answer the
basic reason why immunity in the present case should be granted. It is not
correct to assume (as this argument does) that if the Attorney General was
relieved of personal liability to compensate a victim to whom he owed a duty of
care then the prejudicial effect of the existence of such a duty would
disappear. The Attorney General would still be conscious that he owed a duty of
care to the victim, that the State could be sued if he breached it and I think
this knowledge would have the same disabling effect as a law which conferred
personal liability on him for damages.
Finally
it was urged that the court should not follow the English decisions to which I
have referred because they were decided after the House of Lords overruled Anns
in Murphy v Brentwood
[1991] AC 398. But the reversal of Anns had no effect on
the principles to be applied when the court considers a claim for immunity from
suit. They were applied by the courts in England in the cases to which I have
referred without any reference to Anns and whilst, of course, they are not
binding on this court they serve usefully to illustrate one of the principles
which Ward concluded should be applied in this country when considering whether
or not it would be proper for the court to impose a private duty of care on the
exercise of a public function.
THE
SECOND ISSUE.
The
second issue is this;
"Whether
the defendants owed the plaintiff a constitutional duty or obligation under
Article 40.3 and/or Article 41 of the Constitution or otherwise to consider the
extradition request the subject of these proceedings and to process speedily
the said request as is alleged by the plaintiff in paragraphs 10 and 13A of the
Statement of Claim".
Paragraph
10 of the Statement of Claim claimed that the Attorney General owed a
"constitutional obligation to the plaintiff to consider the extradition request
and speedily to process it to ensure that Father Smyth was quickly brought to
justice" and it was claimed that there was a breach of this constitutional
obligation and duty in that the Attorney General "wrongly and without lawful
excuse failed, neglected and refused to endorse the said warrants for execution
within the State". Paragraph 13A claimed that the acts and omissions of the
Attorney General "have infringed the constitutional rights of the plaintiff and
caused her damage". Sub-paragraph A gave particulars as follows;
"The
defendants herein owed the plaintiff a constitutional duty by reason of Article
40.3 and Article 41 of the Constitution of Ireland to defend and vindicate her
bodily integrity and to protect the plaintiff's family in its constitution and
authority. In the context of the present case the said constitutional
requirements obligated the defendants, their servants and agents to process the
said extradition warrants with all due speed and dispatch to ensure that the
person who had violated the bodily integrity of the plaintiff and who had
infringed the family rights of the plaintiff are swiftly brought to justice".
The
issue fixed by the court refers both to Article 40.3 and Article 41. Article 41
deals with the Family but the plaintiff's counsel has expressly stated that the
plaintiff is no longer maintaining a claim for damages by reason of the breach
of this Article. Her claim is limited to a breach of Article 40.3 which
provides as follows;
"(1)
The State guarantees in its laws to respect, and, so far as practicable, by its
laws to defend and vindicate the personal rights of the citizen.
(2)
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".
It
is well established that the right to bodily integrity is one of the personal
rights which, although not specifically mentioned in this Article are
nonetheless protected by Article 40.3. The plaintiff's case is that there
existed a duty imposed on the defendants not to infringe her right to bodily
integrity and that this involved an obligation to deal with the extradition
warrants speedily, an obligation which the delays of the Attorney General
breached, for which damages are recoverable.
(a)
The existence of the asserted Constitutional duty.
The
duty which it is alleged the "defendants" (that is, Ireland the Attorney
General and the Government of Ireland) owed to the plaintiff was to process the
extradition requests speedily. Whilst there is of course a general duty on the
State (imposed by the Constitution) to defend and vindicate by its laws the
citizen's constitutional rights what is alleged in this case is a specific
constitutional duty arising under the provisions of the Extradition Act, 1965
(as amended). For reasons already explained this Act did not impose a duty of
care on the Attorney General towards the plaintiff and for similar reasons I do
not think that it imposed a duty on him (or on any of the other defendants) not
to infringe the plaintiff's right to bodily integrity. The Act created no
relationship of any sort between any of the defendants and the plaintiff and no
circumstances of any sort existed by which a duty to take into consideration
the plaintiffs bodily integrity (and so speedily consider the extradition
warrants) existed.
There
is as I pointed out, a second reason why the Attorney General at common law
owed no duty of care to the plaintiff arising from considerations of public
policy. The same reasons apply when considering the claim based on the
Constitution. The rights guaranteed under the Constitution are not absolute
rights (with the exception of an implied right not to be tortured which must be
regarded as an absolute right which can never be abridged) and their exercise
and enjoyment may be, and frequently are, limited by reason of the exigencies
of the common good. I concluded, applying well established principles of the
law of tort, that it would be contrary to public policy in this case to impose
on the Attorney General a duty of care towards the plaintiff. The reasons why
no common law duty existed also meant that no constitutional duty existed,
because the exigencies of the common good (that is, in this case the need to
allow the Attorney General to carry out his important public functions without
the threat of an action for damages for negligence at the suit of a private
individual) justifies the court in depriving the plaintiff of a claim for
damages for breach of duty not to infringe her right to bodily integrity. This
means that none of the defendants owed under the Constitution the right
asserted on the plaintiff's behalf.
(b)
The existence of a discrete action for damages for breach of a constitutionally
protected right.
Although
the views I have just expressed dispose of the plaintiff's claim that she is
entitled to damages for breach of a constitutionally protected right I think it
is proper that I should express my views on the issue which was extensively
debated on this part of the case, namely whether had a constitutional duty
existed an action for damages for its breach existed. In approaching this issue
(essentially one of constitutional construction) constitutionally guaranteed
rights may, as the court's decisions show, be divided into two distinct classes
(a) those which, independently of the Constitution, are regulated and protected
by law (common law and/or statutory law) and (b) those that are not so
regulated and protected. In the first class are all those fundamental rights
which the Constitution recognises that man has by virtue of his rational being
antecedent to positive law and are rights which are regulated and protected by
law in every State which values human rights. In this country there exists a
large and complex body of laws which regulate the exercise and enjoyment of
these basic rights, protects them against attack and provides compensation for
their wrongful infringement. A few examples will suffice to demonstrate the
point. The right to private property is protected by laws against trespass; its
enjoyment is regulated by laws against the creation of nuisance, remedies for
breach of the right to private property (by way of injunctive relief and
actions for damages) are available, limitation on its exercise is provided by
law, allow for its compulsory acquisition and limit the power to dispose of it
by will. The right to liberty is protected by habeas corpus acts and laws
against wrongful imprisonment, whilst the exercise of the right is limited by
provisions of the criminal code and legal powers of arrest and imprisonment.
The right of freedom of expression is regulated by defamation laws and laws to
protect public morality. And the right which is in issue in this case, the
right to bodily integrity, is protected by the extensive provision in the law
of tort.
The
courts have, however, pointed out that the Constitution guarantees the exercise
and enjoyment of other rights which are not regulated by law and for which no
legal provision exists either to prohibit an anticipated infringement or to
compensate for a past one. It is now established that for this class of rights
the Constitution is to be construed as providing a separate cause of action for
damages for breach of a constitutional right. In Meskell v CIE (1973) IR 121
the Supreme Court held;
"That
a right guaranteed by the Constitution or granted by the Constitution can be
protected by action or enforced by action even though such action does not fit
into any of the ordinary forms of action in either common law or equity and
that a constitutional right carries within it its own right to a remedy or for
the enforcement of it" (p 132-133).
In
that case the court held that the right of citizens to form associations and
unions guaranteed by Article 40.6.1 necessarily recognised a correlative right
not to join a union, that the defendant had wrongfully attempted to force the
plaintiff to abandon his right to disassociation, and that the plaintiff was
entitled to damages because of the violation of the right guaranteed to him by
the Constitution (p 135), even though a claim for damages for infringement of
this right was not available under existing law.
Subsequent
to Meskell further cases in which the courts have awarded damages for breach of
a guaranteed constitutional right where no remedy for damages existed by common
law or by statute. In Kearney v The Minister for Justice (1986) IR 116 the
court held that the unauthorised actions of prison officers in failing to
deliver to the plaintiff (who was then in custody in prison) letters addressed
to him amounted to an infringement of his constitutional right to
communication, the court holding that the wrong which had been committed was an
unjustified infringement of a constitutional right, not a tort, entitling him
to damages (p 122). In McHugh v Commissioner of Garda Siochana (1986) IR 228,
the Supreme Court awarded the plaintiff costs and expenses incurred in
proceedings against the State in which the State had subsequently accepted
liability, treating the claim as one of those referred to in Byrne v Ireland
(1972) IR 241 arising from a breach of which no damages were recoverable within
a recognised field of wrongs in the law of torts but which the Constitution
conferred a right to damages. Kennedy v Ireland (1987) IR 587 was a case in
which the constitutional right to privacy was infringed and the court, applying
the principal in Mescall held that the plaintiff was entitled to damages for
breach of a constitutionally protected right, and not for breach of any wrong
recognised by common law or statute.
The
courts will not only award damages where a constitutional right which is
unprotected by law has been infringed but will also grant an injunction to
prohibit the infringement of such a right. In Lovett v Gogan (1995) 3 IR 132
the Supreme Court held that the defendants activities constituted an actual or
threatened interference with the plaintiff's constitutional right to earn a
living by lawful means and it granted an injunction to protect him from the
threatened invasion of those rights.
What
falls for consideration in this case is not a guaranteed right of this second
class but a right (ie the right to bodily integrity) in respect of which there
is a large body of law (both common law and statutory) which regulates its
exercise protects it against infringement and compensates its holder should the
right be breached. The question, therefore, is whether in this case the
Constitution is to be construed as conferring a discrete cause of action for
damages for breach of the plaintiff's right to bodily integrity not
withstanding the existence of the law of tort and statutory provisions which
confer a right of action for damages for personal injuries sustained by the
negligent act of omission of another. The question can be posed this way;
should the Constitution be construed so as to confer on a pedestrian injured by
an army lorry a right to claim damages against the State for infringement of
the right to bodily integrity in addition to, or as an alternate to, an action
for damages for negligence?
I
am satisfied that it should not be so construed.
The
State has a duty by its laws to respect, and as far as practicable, by its laws
to defend and vindicate the personal rights of the citizens (Article 40.3.1).
This constitutional provision does not require the Oireachtas to enact specific
laws protecting constitutionally protected rights and the State's duty under
this Article is implemented by the existence of laws (common law and statutory)
which confer a right of action for damages (or a power to grant injunctive
relief) in relation to acts of omissions which may constitute an infringement
of guaranteed rights (see Hanrahan v Merck Sharp and Dome (Ireland) Ltd [1988]
ILRM, 629, 635-636). Thus if the law of torts makes provision for an action for
damages for bodily injury caused by negligence and if the law also adequately
protects the injured pedestrian's guaranteed right to bodily integrity then the
State's Article 40 duties have been fulfilled. The courts are required by the
Constitution to apply the law and the causes of actions it confers and when
these adequately protect guaranteed rights they are not called upon, in order
to discharge their constitutional duties to establish a new cause of action --
indeed it would be contrary to their constitutional function to do so.
Furthermore, to do so would be otiose. If a cause of action for damages for
infringement of the constitutional right of bodily integrity was granted to the
injured plaintiff in the example I have given the court would have to consider
whether there was any breach of the duty which the driver of the army lorry
owed to the pedestrian (for the right is not an absolute one) and in
considering the nature and scope of the duty would decide whether the lorry
driver had failed to take proper care of the plaintiff's safety, whether the
pedestrian failed to take care of his own safety apportion liability as
required by the
Civil Liability Act, 1961, assess damages in accordance with
established principles, and in certain circumstances consider whether the claim
was statute barred -- in other words apply the law of tort to the new cause of
action. There is therefore no need to construe the Constitution as conferring a
new and discrete cause of action for damages in those cases in which the acts
or omissions which constitute the alleged infringement also constitute an
actionable wrong at law for which damages are recoverable. Of course, a
provision of the law to be applied might not in a given case adequately protect
the guaranteed right (for example the law might contain a limitation period
which in the particular circumstance trenched unfairly on a guaranteed right
and thus deprive the plaintiff of a right to compensation as in O'Brien v Keogh
[1972] IR 144) then the law would be applied without the provision rendered
invalid by the Constitution.
The
conclusions which I have just announced are consistent with and follow from the
views of the Supreme Court in Hanrahan v Merck Sharpe and Dohme (Ireland)
Limited
(1988) ILRM 629. The plaintiff in that case had claimed damages for a
nuisance and submitted that the onus of proof in relation to his claim shifted
to the defendants by reason of the provisions of Article 40.3 of the
Constitution. His case was that the vindication of his constitutionally
protected rights was not properly effective by leaving them to their rights as
plaintiffs in an action for nuisance and that the vindication which the
guarantee contained in the Constitution required was that the defendants should
show that the emissions from their factory (which was the cause of the alleged
nuisance) was not their cause. The Supreme Court rejected this submission and
pointed out;
"A
person may of course in the absence of a common law or statutory cause of
action, sue directly for breach of a constitutional right (see Meskell v CIE
(1973) IR 121; but when he found his action on an existing tort he is normally
confined to the limitations of that tort. It might be different if he could be
shown that the tort in question is basically ineffective to protect his
constitutional right" (see pages 635-636).
These
conclusions are also consistent with the views expressed in Meskell which, by
holding that a new and distinct cause of action for damages for breach of a
constitutional right when the existing law failed to confer any right to
damages implied that when it did so no new cause of action should be created.
They are also consistent with those of Barron J in Sweeney v Duggan [1991] 2 IR
274, 285.
I
should briefly explain why I have not been able to agree to the submissions
advanced on the part of the plaintiff. It is accepted that the decision in
Hanrahan does not support the plaintiff's case but it is argued that the
portion of the judgment which I have just quoted is obiter and that the number
of authorities supporting the plaintiff's contentions are more numerous and
that Hanrahan is inconsistent with the decision of the Supreme Court in Lovett
v Gogan (1995) 3 IR 132.
However
the authorities to which I was referred do not, in my view, establish either
that the principle of construction which I have advanced is wrong or that the
decision in Hanrahan is in any way inconsistent with other decisions. Byrne v
Ireland (1972) IR 241 established that the State is not immune from suit whilst
Ryan v Ireland (1989) IR 177 established that the State could be sued in tort.
But the issue now under consideration is whether a separate action lies for
damages for breach of a constitutionally protected rights and the fact that the
State may be sued for the tort of negligence has no bearing on that issue. It
has been perfectly clear since Meskell that the courts will award damages and
grant injunctions for breach of constitutionally protected rights but in each
of the cases where that occurred Meskell was either explicitly or implicitly
applied and damages were awarded (and in the case of Lovett v Gogan an
injunction was granted) where no remedy at law existed. None of those cases
decided that an action for damages for breach of a guaranteed right would lie
in cases where the existing law protected the right.
I
am satisfied that the law of torts which is applicable in this case was not
ineffective to protect the plaintiffs constitutionally guaranteed rights. It
does not follow that because a plaintiff does not recover damages under the
applicable law (in this case, the law of torts) that it must be ineffective in
protecting guaranteed rights. It is necessary to consider why the plaintiff's
claim has failed. As already explained, the applicable principles of the law of
torts established that there was neither a duty owed to the plaintiff by the
defendants under the law of torts or the Constitution to process the
extradition warrants speedily and so by applying the principles of the law of
torts the plaintiff was not deprived of a remedy to which she was entitled
under the Constitution.
The
second issue must therefore be answered in the negative.
THE
THIRD ISSUE.
The
order of the 11 November 1996 was as follows;
"Whether
the second named defendant owed to the plaintiff a duty by reason of the
provisions of the Extradition Acts, 1965-1987 (and in particular, by reason of
section 2 of the
Extradition (Amendment) Act, 1987) to consider the extradition
request the subject of these proceedings and to process speedily the said
request as is alleged by the plaintiff at paragraph 11 of the Statement of
Claim herein".
This
issue arose from the plaintiff's claim that apart from a duty owed by the
Attorney General to the plaintiff by virtue of the common law and/or the
Constitution he also owed a statutory duty of care to the plaintiff which was
breached. Counsel on behalf of the plaintiff informed me that it was not
intended to maintain this claim and accordingly I will answer the issue, "no".
In
the result, therefore, I must hold that the Attorney General owed no duty of
care to the plaintiff on any of the grounds advanced on the plaintiff's behalf,
and answer the three issues in the negative.
