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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Rochford v Kelly & Ors (Approved) [2025] IEHC 251 (08 May 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC251.html Cite as: [2025] IEHC 251 |
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APPROVED [2025] IEHC 251
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THE HIGH COURT
2019 8090 P
BETWEEN
PATRICK (OTHERWISE PADDY) ROCHFORD
PLAINTIFF
AND
PATRICK (OTHERWISE PAT) KELLY
COMMISSIONER OF AN GARDA SÍOCHÁNA
DIRECTOR OF PUBLIC PROSECUTIONS
MINISTER FOR JUSTICE EQUALITY AND LAW REFORM
ATTORNEY GENERAL
IRELAND
JOHN HUNT
RORY SHERIFF
JOHN MCDONALD
RICHARD DALY
DEFENDANTS
JUDGMENT of Mr. Justice Garrett Simons delivered on 8 May 2025
1. These proceedings advance a claim for false imprisonment (wrongful arrest); malicious prosecution; and malicious procurement of a search warrant. The Plaintiff claims damages in the sum of €500,000.
2. The Plaintiff in these proceedings was born in March 1947 and is now a retiree. The Plaintiff resides at 53 Pondfields, New Ross, Co. Wexford.
3. The proceedings relate to events which occurred over the course of the years 2016 to 2018. The Plaintiff was arrested for alleged public order offences on 1 February 2016. The Plaintiff was subsequently prosecuted. The Plaintiff had been convicted before the District Court (12 July 2016) but was acquitted, on appeal, by the Circuit Court (16 February 2017).
4. Towards the end of March 2017, one of the Gardaí who had been involved in the arrest and prosecution made a complaint against the Plaintiff of "harassment" contrary to the Non-Fatal Offences against the Person Act 1997. The complaint of harassment related, inter alia, to Facebook posts which were alleged to have been published by the Plaintiff. The complaint of harassment was assigned to an independent detective inspector and detective sergeant for investigation. As part of the investigation, a search warrant was obtained and executed against the Plaintiff's home on 16 May 2017. A number of electronic devices were seized and sent for forensic examination. A file was submitted to the Office of the Director of Public Prosecutions on 17 August 2018. The Office of the DPP directed no prosecution on 10 September 2018.
5. The Plaintiff instituted these proceedings by way of plenary summons in October 2019. The Plaintiff has joined, as defendants to the proceedings, a large number of individual Garda officers together with certain State entities. In some instances, it is unclear as to what, if any, claim is being made against certain of the defendants. For example, the Director of Public Prosecutions has been joined to the proceedings but had no involvement in the arrest, public order prosecution, nor the search warrant the subject-matter of the claim.
6. The proceedings came on for hearing in February 2025. The case had been called on by the parties for eight days. The actual hearing took slightly longer: the oral evidence was heard over eight days, with a ninth day dedicated to the hearing of legal submissions. One day of the scheduled hearing had been lost as a result of sickness on the part of the Plaintiff. The hearing concluded on 21 March 2025.
7. The Plaintiff appeared as a litigant in person and is elderly. To facilitate him, a number of accommodations were made as follows. First, the Plaintiff was permitted, at his request, to participate remotely for much of the hearing, i.e. by way of a video link via an online platform, rather than being required to attend physically in the courtroom. Most of the cross-examination of the Plaintiff took place in this way. Second, notwithstanding that the Plaintiff is the moving party and bears the onus of proof, this court directed that the Defendants deliver their written legal submissions first. This was done so as to allow the Plaintiff time to consider the submissions and to understand the nature of the legal issues arising in the proceedings. This court also directed that copies of the relevant case law be sent to the Plaintiff well in advance of the date scheduled for the delivery of his own written legal submissions. At the conclusion of the evidence, the Plaintiff was allowed a period of some three weeks to prepare his written legal submissions. Third, the Defendants agreed to provide overnight transcripts of the hearing to the Plaintiff gratis. This was done to allow the Plaintiff better understand the course of the evidence and the argument. It also allowed the Plaintiff the opportunity to identify where in the evidence the contradictions, which he alleged, were to be found. Fourth, the Plaintiff was provided with transcripts of the hearings of the criminal prosecution before the District Court and the Circuit Court. Again, this was done to facilitate the Plaintiff in identifying what he alleged were contradictions in the evidence given by the Garda witnesses as between those two court hearings. The Plaintiff ultimately failed to identify where the supposed contradictions were to be found in the transcripts.
8. The Plaintiff was recalled, on the eighth day of evidence (Day 9 of the transcript), to give evidence in relation to an additional issue in the following circumstances. Notwithstanding an agreement to provide voluntary discovery, the Plaintiff did not provide copies of relevant Facebook posts to the other side. The Facebook posts only became available during the course of the hearing by dint of the Plaintiff resetting the status of his Facebook account to "public". The Defendants subsequently identified a number of posts which they said were relevant to the question of the date upon which the Plaintiff first became aware that there would be no criminal prosecution in relation to the complaint of harassment. The Plaintiff had not addressed these Facebook posts during his previous evidence. To ensure fair procedures, the Plaintiff had been recalled briefly to allow him an opportunity to confirm or deny that he had published the Facebook posts, and, if he had published same, to provide the context for same.
9. Separately, the Defendants had also made an application to introduce evidence in respect of a minor conviction which had been entered against the Plaintiff in the 1980's. This application was made pursuant to section 7 of the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016. The application was refused in circumstances where this court was satisfied that the legacy conviction for a minor offence had no probative value in relation to any of the issues arising in these proceedings. There is no overlap—whether in terms of the nature of the offence or the parties—between that legacy conviction and the events the subject-matter of these proceedings. It would not be appropriate, therefore, to attach any weight at all to the legacy conviction.
11. For reasons which have not been properly explained, a formal affidavit of discovery was not sworn. Instead, the two documents were simply furnished to the Plaintiff by way of email on 8 February 2023. The Plaintiff acknowledged receipt of the two documents by email dated 12 February 2023. No objection appears to have been taken by the Plaintiff to the fact that a formal affidavit had not been sworn.
12. The second of the two documents furnished to the Plaintiff consisted of a typed version of Garda Kelly's complaint. The original complaint had been recorded in handwriting or manuscript on what is described as a "Form C8". The original complaint was only produced, for the first time, during the course of the hearing of these proceedings.
13. It is regrettable that the Defendants failed to file a formal affidavit of discovery. Had the exercise of drafting and swearing an affidavit been carried out, it is likely the deponent would have ensured that a copy of the original complaint had been located and produced for inspection. The failure to produce the original complaint until during the course of the hearing caused an entirely avoidable controversy. The Plaintiff, understandably, was concerned that the original had been produced so late. For the reasons explained at paragraphs 151 to 156 below, this court is satisfied that the copy of the original complaint is authentic.
14. The Defendants served a request for voluntary discovery on the Plaintiff on 21 November 2024. Relevantly, one of the categories sought had been as follows: All external correspondence and/or internet postings regarding the Plaintiff's alleged treatment by the Defendants as referenced in the Plenary Summons or Statement of Claim.
15. The Plaintiff, by email dated 18 December 2024, agreed to make discovery. Order 31, rule 12(7) of the Rules of the Superior Courts provides that any discovery sought and agreed between parties shall be made in like manner and form and have such effect as if directed by order of the court.
16. Thereafter, the Plaintiff filed an affidavit on 7 January 2025. The affidavit is not in the prescribed form of an affidavit of discovery. It does not contain the prescribed schedules and does not list or otherwise identify the individual documents. It appears that the affidavit was accompanied by copies of correspondence between the Plaintiff and various State entities. Notwithstanding that the Plaintiff had been required, by virtue of his having agreed to make discovery in terms of the request for voluntary discovery, to discover internet postings regarding the Plaintiff's alleged treatment by the Defendants, the Plaintiff failed to disclose any posts published by the Plaintiff to his Facebook account.
17. At the commencement of the High Court hearing, the Plaintiff explained that he was unable to access his Facebook account. This deficiency was, however, addressed by the Plaintiff as follows during the course of the trial. The Plaintiff, with the assistance of his adult son, arranged to set the status of his Facebook account to "public". (See Day 5, pages 87 and 108; Day 6, page 26; and Day 8, page 93). This ensured that both sides could access the relevant Facebook posts. The Facebook platform has a search function which allows all of the posts on a particular user account to be interrogated. The Defendants' solicitor used this search function to locate the posts referred to in the sworn information before the District Court. The Defendants' solicitor arranged for impressions of these and other relevant Facebook posts to be printed out and copies were supplied to the court and to the Plaintiff.
18. These proceedings are concerned with events which took place some eight or nine years ago. Having regard to this lapse of time, it is unsurprising that a number of the Gardaí involved have since retired or have been promoted to a higher rank. For ease of exposition, however, it is proposed to describe the Gardaí by reference to their rank at the material time. Thus, for example, Inspector Kelly will generally be referred to as "Garda Kelly".
19. There is a large measure of agreement between the parties as to the factual circumstances leading up to the arrest of the Plaintiff. The principal area of controversy centres on what, if anything, the Plaintiff said in respect of the politician officiating at the event and whether the Plaintiff had been directed, pursuant to the Criminal Justice (Public Order) Act 1994, to leave the vicinity.
20. The narrative which follows is predicated on the sworn evidence which the Plaintiff and the members of An Garda Síochána gave during the hearing of these proceedings. If and insofar as there are conflicts on the evidence, which require to be resolved for the purpose of the determination of these proceedings, these will be identified and addressed in more detail thereafter.
21. An event took place on 1 February 2016 to mark the commencement of a road scheme known as the "N25 New Ross Bypass". The event has been described as a "sod-turning ceremony". The sod-turning ceremony was to be performed by the then Minister for Public Expenditure and Reform (Brendan Howlin, T.D.), and the then Government Chief Whip and Minister of State (Paul Keogh, T.D.).
22. The event took place on lands at Camlin, New Ross. A marquee had been erected to accommodate the guests and an ad hoc car park with grit had been laid out (Day 2, page 50). The road from which the event was accessed is subject to an 80 kilometre per hour speed limit (Day 7, page 140).
23. Written invitations had been issued in advance of the event. The parties are in disagreement as to whether the event was by "invitation only" (as said by the Garda witnesses) or a "public event" open to all (as said by the Plaintiff).
24. The Plaintiff asserts that he had been given a written invitation to the event by a member of Wexford County Council, Councillor Oisin O'Connell (Day 2, page 5). A copy of this invitation had been disclosed by the Plaintiff as part of his discovery of documents. The invitation clearly identifies the two Government Ministers as officiating at the event. It is stated on the face of the invitation that a map showing the sod-turning location, car parking and reception directions is attached.
25. The Plaintiff also asserts that he made a separate arrangement to "meet" with another member of Wexford County Council (Councillor Michael Sheehan) at the sod-turning ceremony. Councillor Sheehan had been the Cathaoirleach of New Ross Municipal District.
"I had an invite to this event and I had arranged to speak with the Chairman of the Local Council who was also attending in his capacity as an Elected Member of the Council."
(Day 1, page 8)
26. The Plaintiff is insistent that whereas Councillor Sheehan had arranged to "meet" him at the sod-turning ceremony, the councillor had not "invited" him to attend the ceremony.
27. A number of Gardaí had been deployed at the event. The officer in charge of the event had been Superintendent John McDonald. The Superintendent gave evidence in these proceedings. The Superintendent explained that he had briefed, in advance, the Gardaí deployed at the event. The Superintendent gave evidence to the effect that the Gardaí had been instructed (i) to make sure that there were no issues with traffic having regard to the location of the event at a bend in the road and the volume of traffic entering the event; and (ii) to deal appropriately with any public order or other related matters or breach of the peace (Day 6, page 31).
28. The Superintendent gave evidence that it was his understanding that the event was by invitation only as follows (Day 6, page 51):
"The public in general couldn't access that event, it was by invite only. It was mainly councillors, politicians. The Minister was there. There was BAM representatives there and both the Chief Superintendent and myself were invited. So invites went out to people to invite them to the event. It wasn't something that was open to people generally."
29. The Gardaí deployed at the entrance were not, however, specifically directed to check invitations of the individuals attending the event.
30. The Plaintiff had three interactions with the guards on duty on the road at the vehicular access to the sod-turning ceremony as follows.
31. The first interaction occurred after the Plaintiff had attempted to park his motor car on a grass verge on the same side of the road as the vehicular access to the event. The Plaintiff described the interaction as follows (Day 1, page 42):
"Anyway, I went, arrived there, right, and I pulled in my car on the grass verge, and as I pulled in, as I stopped the car, I hadn't got the engine switched off or nothing like that, and this Garda, Garda Pat Kelly now as I know him anyway, he came rushing towards the car and told me: 'You can't park there', and I said: 'I'm here for the sod turning ceremony', and he said: 'It's over, it's finished, move on.' Right? And I said: 'Oh', and I did, I moved on."
32. Garda Kelly's recollection of this incident is as follows (Day 7, page 104):
"[...] a car pulled up at the bend just before the gate. I would've went to the car out of safety for the driver. I didn't know at that stage who was in it, just to say, you know, we need to move on and keep traffic moving. I went there. I recognised Mr. Rochford. I stated to him that he needed to move, the location was potentially dangerous, if somebody came round the bend at speed it could cause a collision. He stated he wanted to go inside. I would've said to him that I think it's nearly over, which I did believe at the time it was nearly over. Mr. Rochford moved on, there wasn't much issue, Judge."
33. The second interaction involved the Plaintiff returning and parking his car on the opposite side of the road. The Plaintiff and the Garda witnesses are in agreement that the Plaintiff exited the vehicle on this occasion.
34. The Plaintiff described the interaction as follows (Day 1, pages 42/43):
"I went up the road, turned around to go home. And on the way back down I could see out over the hill the people were still in the tent, so the sod hadn't even started, let alone been finished. So on my left hand side then on the way back, opposite the big field, there was a huge big grass verge, which there is photographs* there for this to show you, right, and I pulled in there, and here, this Guard came rushing towards me again and he said: 'You can't park there.' And I asked him why. And he says: 'You're a danger to the traffic.' But I was off the road, completely off the road. Now, he told me to move on, get out of here, right, I probably did use some choice language, I do not know.
[...]
Well, I could have said 'fuck', if that's —"
(*No photographs were ever adduced in evidence before the High Court)
35. The Plaintiff also stated as follows (Day 2, page 76 and Day 3, page 22):
"I asked Pat Kelly was he blind and stupid, and I don't deny it."
"I did ask him at one stage was he fucking stupid, yes"
36. The Plaintiff also stated to Garda Kelly that "the taxpayer pays his wages" (Day 3, page 25).
37. Garda Kelly's recollection of this second interaction is as follows (Day 7, pages 104 to 105):
"I went over, he got out and he started to shout at me that the event wasn't over and that I was a liar. I asked him to calm down. I'm well aware too, Judge, that side of the road. Now, it would have been between the ditch, say, and the car, so he wouldn't have been on tarmac. He then began to shout at me then, Judge, about unrelated matters, in particular the case involving retired Sergeant Redmond and Judge Haughton, who was the District Court Judge at the time. I think there was comments passed possibly about my former Superintendent Aidan Brennan. And I was probably taken aback by it and I remember saying to him, 'This is not the time or place. If you want to talk about it somewhere else, do, but this isn't the time or place.' I don't recall any request at that stage, Judge, to then go into the event inside.
At that stage then he became very verbally abusive to me in regards to — you know, he said he could park where he was, he wasn't causing an issue where he was parking. I said it's between two cones. And ordinarily, Judge, to park there might be fine but when you consider there's going to be a lot of traffic coming in and out, every situation when you're planning it becomes fluid as opposed to what event might be taking place there. You know, a normal street could be fine one day but if you have a march on the next day, you need to take precautions you wouldn't normally take.
So at that stage I remember being called blind and stupid and various things and I remember just asking him to calm down. So he wanted my number. So I suppose the purpose of a Garda shoulder number, Judge, is to identify the Guard and I said my name is Garda Pat Kelly, I said. He said, 'I want your number' and I said, 'Okay, you can have it but my name is Garda Pat Kelly.' I remember, Judge, my epaulette would've been — I didn't realise, I said, well, my number is there, so he grabbed it and he turned it inside out and I said, 'Look, take your hands off me, you can't do that.' So he then — he got into the car and he drove off."
38. Detective Garda Darren Lyons stated as follows (Day 7, page 69):
"He parked opposite the entrance to the event, Judge, in between cones that were on the road, Garda cones preventing parking that were on the road."
39. Garda Pat O'Brien gave evidence as follows (Day 7, page 85):
"It was explained to Mr. Rochford that he couldn't park there, that it was an area cordoned off for a reason and that there was a continuous white line adjacent to that and that, due to the nature of the speed in the area and the road surface and the single white line, it was dangerous to park there at that location. Mr. Rochford got out of his car and became quite irate. He began shouting at Garda Kelly. At one point I observed him grab Garda Kelly's epaulette."
41. The Plaintiff's evidence is that Garda Kelly informed him that the ceremony was by invitation only and asked him whether he had an invitation; that the Plaintiff then asked to look at the invitation list; and that Garda Kelly said there was no list. The Plaintiff states that he informed Garda Kelly that he had an arrangement to meet with Councillor Sheehan. (The Plaintiff, in his evidence to the High Court, has consistently emphasised that whereas Councillor Sheehan had arranged to "meet" him at the sod-turning ceremony, the councillor had not "invited" him to attend the ceremony as such). For reasons which have never been properly explained, the Plaintiff did not take the obvious step of informing Garda Kelly that he (the Plaintiff) had a written invitation in his car which had been given to him by Councillor O'Connell.
42. There is disagreement as to what happened next. As summarised below, Garda Kelly's evidence is that he made enquiry of a more senior officer (Sergeant Richard Daly) as to what should be done, and that Garda Kelly was subsequently told that if the Plaintiff wanted Councillor Sheehan to bring him into the ceremony, the Plaintiff would have to contact Councillor Sheehan himself. On Garda Kelly's version, the Plaintiff then became highly agitated, and matters culminated with Garda Kelly making a direction pursuant to section 8 of the Criminal Justice (Public Order) Act 1994.
43. The Plaintiff's evidence is that he was told—mistakenly in his view—that Councillor Sheehan would not meet him. The Plaintiff's response was to say as follows: "Well, I'm going in anyway, so that's it" (Day 1, page 44). (See also Day 2, page 59). The Plaintiff admitted that he had said to Garda Kelly "watch what fucking happens" if he were to place his hands on the Plaintiff (Day 3, page 35).
44. The Plaintiff also admitted that he said the following to Garda Kelly (Day 2, page 90):
"I won't be coming after you as a Guard but I'll be coming after you as a man"
45. The Plaintiff says that what he meant by this had been that he would sue Garda Kelly personally for damages (Day 2, page 92):
"Q. Tell me, what do you mean going after him as a man? What do you mean by that?
A. Instead of him being here represented by the State he would have to represent himself as a man, not having you represent him. That's what I meant, and that's what I still mean."
46. The Plaintiff confirmed, at a later point in his evidence, that he thought himself entitled to enter the event. See, for example, the following exchange on Day 3, page 36:
"Q. You walked past him [i.e. Garda Kelly]?
A. If he had been standing there, I would have. I am telling you truthfully now, I was standing up for what I thought and what I still think was my right to go in there.
Q. So indeed if he was right in front of you, you would have pushed past him?
A. I would have, yeah."
47. The Plaintiff described his understanding of the reason for his arrest as follows (Day 2, page 162):
"No, I wasn't arrested because of that. I was arrested because I said I was going in, after speaking to the secretary of the Minister for the Environment, I think it was at the time, I was arrested after that when I said when I said: 'I'm going in anyway'."
48. The Plaintiff has also alleged that Garda Kelly had told him that he (Garda Kelly) had spoken directly with Councillor Sheehan, and further that Garda Kelly had given evidence to that effect in the District Court only to change it in the Circuit Court. This latter allegation is false and is not substantiated by the transcripts of the criminal prosecution. See paragraphs 134 to 135 below.
49. The Plaintiff accepted, in cross-examination, that it is conceivable that his voice could have been raised at a "very high level" when speaking to these Gardaí (Day 3, page 75).
50. Garda Kelly described the incident as follows in his evidence to the High Court (Day 7, page 106):
"So I asked him, 'Have you an invitation to it'. So he said that he was invited by Councillor Michael Sheehan and he said, 'Could you check.' Now, it was very aggressively done. I said no problem. So I did try to facilitate his request. He wasn't dismissed out of hand. I remember then I radioed Sergeant Daly to say Mr. Rochford was at the gate, he said he was invited by Michael Sheehan, that he wanted to go in, could he check. So I was probably waiting four or five minutes, Judge, of which Mr. Rochford was quite close and abusive to me."
51. Garda Kelly continued as follows (Day 7, page 107):
"So I remember Sergeant Daly walked out. We probably met maybe halfway between the distance between the tent and the roadside and he said to me, 'He's not invited. If Michael Sheehan wants him in there, Michael Sheehan can come out and escort him in.' So I said fine, I went back and relayed this to Mr. Rochford. I said, 'Look, enquiries have been carried out. Michael Sheehan said he didn't invite you and if you want Michael Sheehan to bring you in, contact him to bring you in.' And at that stage, Judge, it just escalated out of control and he started calling me a liar and I was corrupt and whatever."
52. This is corroborated by Superintendent McDonald's evidence (Day 6, page 29):
"I was inside in the event when Sergeant Daly came into the event. He informed me that Mr. Paddy Rochford was outside demanding entry to the event. Enquiries were conducted and Sergeant Daly returned stating that
[...]
A. Enquiries were conducted and Sergeant Daly returned to me to confirm that there was no invite for Mr. Rochford. And on that basis, I would have said that if there was no invite, that he's not to be allowed into the event."
53. Garda Kelly continued his evidence as follows (Day 7, pages 108/109):
"So with that then, he was on the phone, he was abusive, he seemed to single me out. Because the event, you could see kind of movement in the tent behind us and at that stage he mentioned Brendan Howlin. So I was aware Brendan Howlin was inside at it. I was aware he was a local government minister for the Wexford constituency. So I asked him, I said, 'Have you a problem with Brendan Howlin' and he said to me, 'The whole country has a problem with Brendan Howlin and I'm going into him.' And I then said 'Well look, I'm not going to allow that happen. I now have concerns for the welfare of Minister Howlin, so you're not going in', I said. And what I done then, Judge, was that I outlined to Mr. Rochford that I believed he was in breach of Section 6 of the Public Order Act, which is engaging in threatening, abusive, insulting behaviour or language and that can rise to a breach of peace — that's arising to a breach of the peace or a breach of the peace may be occasioned. And then I would've given him a direction under Section 8 of the Public Order Act, which would be that you would outline to him under Section 8 that you're breaching Section 6 and that I'm now directing you. So it becomes a Garda direction, Judge, to desist from the behaviour and to leave the scene in an orderly manner. A failure or refusal to do so, Judge, will lead to a fine of up to €635 and/or six months in prison. He just said, 'I don't care.' There was more abuse. The abuse at this stage then seemed to be directed at all three of us and why were we protecting Brendan Howlin and the people inside? And then I could see that — from what I could see, I thought the event was then ending and he goes, 'Well, I'm going in there, watch what happens.' And I said, 'you've been given enough chances now, you've been asked several times to go home, to leave it alone, and you're now being directed to go home.' And I would have repeated that direction a second time. So he then said, 'I'm going in, watch what happens,' and he went to rush past me then, Judge, and I grabbed him. There was a slight struggle and he would've been placed in handcuffs. Which is not something, Judge, you know, we kind of — To be handcuffing anyone, Judge, is a last resort because I always say, if you put handcuffs on somebody, you also have to take them off and that can lead to other problems. So I'm not into handcuffing people unless it's absolutely necessary."
54. Garda Kelly stated as follows (Day 7, page 137):
"Regardless then, Judge, if there was an invite or not, I would not have allowed Mr. Rochford in following the comments that were passed about Mr. Howlin."
55. The Plaintiff was then arrested by Garda Kelly. The Plaintiff was handcuffed with his hands behind his back. Garda Kelly explained in evidence his rationale for using handcuffs as follows (Day 8, page 108):
"Judge, I weigh up all the factors, Judge, before placing handcuffs on somebody; is it necessary, is it proportionate, is it reasonable, Judge, to put handcuffs on somebody? All of them were met, Judge, at the time, for my safety and the safety of my two colleagues, including the driver on the way back to the station. I don't recall him, as I say, Judge, leaning for, he was sat back with his hands behind his back and he was conveyed the few minutes to the Garda station. But I take care in placing handcuffs on anyone I have ever placed them on, Judge. Number 1; you have to take them off then as well, and when you are taking handcuffs off, that can at times become a difficult situation. But I would have not placed handcuffs on Mr. Rochford or anyone throughout my career, Judge, unless it was absolutely necessary in that position, Judge. And I agree with Mr. Rochford, it's not a nice position to be in with handcuffs on them, Judge. So I accept it is, Judge, but in this case, Judge, it was absolutely necessary."
56. Although the Plaintiff sought to suggest at one stage that the handcuffs had injured him, this allegation has not been substantiated. Tellingly, the Plaintiff, on his arrival at the Garda Station, neither made a complaint in this regard to the custody officer nor sought any medical assistance. This is confirmed by the evidence which the custody officer, Garda Grace Fitzpatrick, gave to the High Court.
57. The car journey to the Garda Station entailed a four to five minute drive (Day 7, page 74). The Plaintiff alleges that he had not been secured by a safety belt for the car journey to the Garda Station. Garda Kelly in his evidence stated that he has no specific recollection of the safety belt.
58. This court finds as a fact, on the balance of probabilities, that the Plaintiff was not restrained by a safety belt during his journey from the location of his arrest to the Garda Station. This finding is reached in circumstances where the two relevant police officers have, very fairly, conceded that they have no specific recollection of applying a safety belt. Garda Kelly has, again very fairly, accepted that he did make some jocular comment along the lines that were the Plaintiff to be injured he would receive "plenty of money" in compensation from the Government. This was done in an attempt to "defuse the situation" by introducing "a bit [of] humour" (Day 8, page 110).
59. This court accepts that this comment was made in an attempt to de-escalate what was, self-evidently, a very tense situation by injecting some humour. The very fact that the comment was made, however, is consistent with a finding that there was no safety belt applied. The jocular comment only really makes sense in a context where the Plaintiff was complaining in relation to the safety belt.
60. The failure to apply a safety belt does not, however, give rise to an actionable claim for damages on the part of the Plaintiff. The European Communities (Compulsory Use of Safety Belts and Child Restraint Systems in Motor Vehicles) Regulations 2006 do not apply to a member of the Garda Síochána acting in the course of his or her duties.
61. Whereas it is best practice that a prisoner should have a safety belt applied, there will be certain circumstances in which it will not be reasonably possible to apply the safety belt. A prisoner might, for example, be highly agitated and any attempt to apply a safety belt may present a risk to the police officers. In the present case, Garda Kelly has given evidence that he did have a concern in relation to the safety of himself and the detective garda driving the vehicle. In circumstances where the journey to the Garda station took only a matter of minutes, it was reasonable not to apply a safety belt. In any event, the Plaintiff suffered no injury as a result. The journey to the Garda station passed off without incident, and, relevantly, the Plaintiff confirmed to the custody officer that he did not require any medical attention.
62. The Plaintiff and the Garda witnesses are in agreement that there was an incident whereby the Plaintiff reached out and touched one of the epaulettes on Garda Kelly's uniform. The epaulette indicated Garda Kelly's so-called "shoulder number", i.e. his unique identification number. There is disagreement as to the timing of the incident. The Plaintiff's recollection is that it occurred as part of the third interaction, i.e. after the Plaintiff had returned on foot (Day 3, page 56). The Garda witnesses recall the incident as having occurred as part of the second interaction, i.e. at the time the Plaintiff had parked on the opposite side of the road between the "no parking" cones.
63. There is also disagreement as to whether this incident occurred with Garda Kelly's consent. The Plaintiff's version of events is that the epaulette was not "facing out the front" and that he "just caught it with my finger and fore thumb and turned it around to read the number" (Day 3, page 52). Garda Kelly's version of events is as follows (Day 8, page 23):
"To answer the first part of the question, Judge, I did not give anybody permission to put their hands on me, including Mr. Rochford. The second part, Judge, would be accurate in that he didn't rip at it. He grabbed it. I did not know at the time that it was upsidedown. As I said, I had shoulder numbers on both shoulders like today and he placed his hand and he turned it around. Was it in an aggressive manner? No, it wasn't, but I certainly did not give him -- If he had said to me, 'I can't see your numbers turned inside out', then I would've looked, corrected it and fixed it. But I did not give anybody, including Mr. Rochford, throughout my career permission to put their hands on me."
64. The evidence indicates that there was a short discussion between the Plaintiff and Garda Kelly as to the former's activity on Facebook.
65. The Plaintiff's version of events is as follows (Day 1, page 45):
"Now while I was still in the station, right, the Garda Station, Garda Kelly said to me: 'You are going to be in trouble...', he said, '...in a couple of weeks time.' He said: 'There is Guards coming from Waterford to you and they are going to arrest you and you are in trouble.' And I said: 'For what?' And he said: 'Now it has nothing to do with me.' He said. 'It's stuff he said on the Facebook about the Guards. I don't have Facebook, I don't have an account so I don't know what you said but they are coming to get you and that's it. Right.' And I said: 'Right.' So I went off."
66. Garda Kelly's version is as follows (Day 8, page 53):
"I had listened to two hours of ranting, raving, abuse, threats. He was leaving — As he was in the station I just said, 'Don't say any more, write it on Facebook later on', I said, and I closed the door of the station and I came round to the counter and he said, 'Why, will you be reading it? And I did say, 'I'm not on Facebook, I won't be reading what you're saying.' [...]"
67. Garda Kelly expressly denied that he had made any reference to an intended arrest by the Gardaí in Waterford:
"I did not, and nor would I have known, that there was Guards coming for Mr. Rochford. I have no knowledge of that, I wouldn't be privy to that information. I'm an Inspector now, Judge, in the Kildare Division. I don't even know what the operational plans next week for the divisional crime units there are, so it would be impossible for me to have said that, because I wouldn't have known that."
68. As it happens, the Plaintiff was arrested again within two weeks of the events of 1 February 2016, but the arrest was unrelated to any activity on Facebook.
69. If and insofar as it is necessary to resolve this factual dispute for the purpose of the present proceedings, this court finds the evidence of Garda Kelly to be the more probable. It is inherently unlikely that a low ranking Garda would have been informed of operational plans for a different division. The Plaintiff was not, in fact, arrested for anything to do with Facebook posts in the weeks following. Indeed, there is nothing in the evidence which suggests that there had been any criminal investigation in relation to the Plaintiff's activities on social media until a year later, when Garda Kelly made his complaint of harassment.
70. Subsequent to his being charged with two public order offences, the Plaintiff was released on station bail. The Plaintiff objects to the fact that the Gardaí did not provide him with a lift back to the location where his car had been parked.
71. Garda Kelly provided the following explanation for why the Plaintiff was not provided with a lift back to the location where his car had been parked (Day 8, page 95):
"Judge, I suppose there would be three reasons for that, Judge. Number one, Mr. Rochford lives in the town of New Ross so he would be living quite close, Judge. Number two, we're not obliged, Judge, to return people, especially that hour of the day. It would be a different story, Judge, if people were going home driving country lanes, we'd make sure they get home safely. And the third, probably most important, reason, Judge, I suppose an old phrase, 'returning to the scene of the crime'. I removed Mr. Rochford for the safety, in particular Mr. Brendan Howlin, and to bring him back out to the scene an hour later I don't believe would have made any sense."
72. There was no legal obligation upon the Gardaí to provide the Plaintiff with a lift and the omission to do so was objectively justified. Certainly, the omission does not give rise to any cause of action. It is, however, an indication of the Plaintiff's lack of any insight into his own behaviour that he seems to have thought that, notwithstanding his threatening and abusive behaviour towards them, he had a legal right to be driven back by the Gardaí.
73. It should be emphasised that the role of this court in determining the claim for false imprisonment (wrongful arrest) and malicious prosecution is a narrow one. In brief, the role is confined to assessing the reasonableness of the actions of the relevant Gardaí. This exercise does not involve, in any way, a revisiting of the outcome of the criminal prosecution. The Plaintiff's innocence of the alleged public order offences is not in doubt: the Plaintiff has been acquitted and is presumed innocent. Any finding by this court that the Gardaí acted reasonably in arresting the Plaintiff and in pursuing a criminal prosecution does not detract from this.
74. Subject to that caveat, it is necessary for this court to make certain limited findings of fact in relation to the events on 1 February 2016. This is because the circumstances of the present case are unusual in that the Garda who made the arrest and the initial decision to pursue a criminal prosecution did so on the basis of his own observation of the events alleged to constitute the offences (rather than on the basis of a complaint by a third party). It is necessary to determine the basic facts in order to facilitate an assessment of the reasonableness of Garda Kelly's conduct.
75. As appears from the foregoing summary of the evidence, there is a large measure of agreement between the parties as to the circumstances leading up to the arrest of the Plaintiff on 1 February 2016. There are, however, a number of factual controversies which require to be resolved in order to assess the reasonableness of the arrest and criminal prosecution. It should be reiterated that a finding that the Gardaí acted reasonably does not, in any sense, detract from the presumption of innocence. The principal areas of disagreement are addressed in more detail below. Before turning to that task, however, it is necessary to say something about the demeanour of the witnesses insofar as it goes to the question of the assessment of their credibility.
76. The Plaintiff, Mr. Paddy Rochford, was the only witness to give evidence in support of the Plaintiff's case. Mr. Rochford's demeanour as a witness was evasive, combative and, on occasion, aggressive. Mr. Rochford frequently sought to parry questions by counsel for the Defendants. Mr. Rochford would often ignore the question actually asked, and would, instead, repeat his overarching complaints in the proceedings or make further allegations in relation to matters not before the court. At one point, Mr. Rochford attempted to accuse counsel of being liable for assisting perjury (Day 2, page 94). It is entirely unacceptable for any party to attempt, even indirectly, to threaten or intimidate counsel in the execution of their instructions. The right of each party to cross-examine the other side's witnesses is a fundamental right in our adversarial system and is essential in eliciting the truth. This right would be undermined if counsel were to be inhibited in carrying out their professional duties because of threats and intimidation. For completeness, it should be recorded that the cross-examination of Mr. Rochford was conducted in an entirely proper manner.
77. Mr. Rochford often resorted to hyperbole, describing Garda Kelly as being "everything that a human being should not be" (Day 1, page 18); as "acting like a thug" (Day 2, page 66); and as "not right in the head or something" (Day 2, page 67).
78. Mr. Rochford had no compunction in making the most serious allegations against individuals, only to contradict those allegations subsequently himself. For example, Mr. Rochford made the following allegations in relation to the execution of the search warrant against his home (Day 1, page 32; Day 1, page 111):
"12, 15 guards coming into your house, pushing you up against a wall, telling you not to move, pushing your wife up against the wall, telling her not to move, and then going over the house, running through it [...]"
[...]
"They came in like wild animals through that front door, nearly flattened my wife against the wall when they pushed in the door."
79. It transpired that these allegations are entirely untrue. Mr. Rochford subsequently confirmed in evidence that the detective sergeant in charge of the execution of the search warrant had been "very kind" to his wife (Day 5, page 161). Mr. Rochford personally thanked the detective sergeant "for the way you treated us" and for returning certain of the items seized within a matter of days (Day 6, page 128).
80. Another unfounded allegation pursued by Mr. Rochford had been to the effect that a recommendation not to prosecute had been made within three months of the commencement of the investigation into the complaint of harassment. In fact, the file was not submitted until August 2018 and a direction did not issue from the DPP's Office until September 2018, that is, some eighteen months after the complaint was made in March 2017. Notwithstanding that he was regularly reminded of the chronology, Mr. Rochford persisted in his unfounded allegation throughout the proceedings.
81. Yet another unfounded allegation made by Mr. Rochford had been that Garda Kelly had changed his evidence as between the District Court and the Circuit Court. As explained at paragraphs 134 and 135 below, this allegation is false and not borne out by the transcript.
82. The fact that the Plaintiff frequently engaged in exaggeration, and persisted with unfounded allegations even in the face of uncontradicted objective evidence to the contrary, undermines the Plaintiff's credibility and reliability as a witness.
83. In marked contrast to Mr. Rochford, the principal witness on behalf of the Defendants, Garda Kelly, gave his evidence in a fair and even-handed manner. Garda Kelly made appropriate concessions where he did not have a clear recollection of a specific issue. For example, Garda Kelly very fairly conceded that he may not have placed a safety belt on the Plaintiff for the car journey to the Garda Station. Garda Kelly remained calm and polite in the face of what was, at points, an unnecessarily aggressive cross-examination conducted by the Plaintiff. In particular, Garda Kelly did not rise to the bait when the Plaintiff asked a series of personal questions in relation to the witness's wife and her knowledge of the Facebook posts.
84. It is reasonable to infer from their respective demeanours in the witness box that Mr. Rochford is the person more likely to quicken to anger. The fact that Mr. Rochford was, on occasion, unable to restrain himself in the formal context of the courtroom suggests that he may have been even more uninhibited in the less formal context in which the events of 1 February 2016 unfolded.
85. One of the principal factual disputes which emerges on the evidence is whether the Plaintiff made reference to Minister Howlin. It will be recalled that Minister Howlin was one of two government ministers officiating at the sod-turning ceremony. It is necessary to resolve this factual dispute because any assessment of the reasonableness of Garda Kelly's actions will be informed by whether the Plaintiff had made reference to Minister Howlin in a manner which might reasonably have been regarded as intended to provoke a breach of the peace or which might give rise to a reasonable apprehension for the safety of Minister Howlin or for the maintenance of the public peace.
86. Garda Kelly's evidence has been summarised above and is to the effect that the Plaintiff had stated that the "whole country has a problem with Brendan Howlin and I'm going into him".
87. Garda Kelly's evidence is corroborated by that of the other two Gardaí on duty at the roadside entrance to the event. Garda Pat O'Brien gave evidence that the Plaintiff had referenced Minister Howlin as follows (Day 7, page 86):
"[...] Mr. Rochford became quite agitated at this point again. He asked why we were protecting Minister Howlin and Garda Kelly asked him at that point, 'Have you an issue with Mr. Howlin?', to which Mr. Rochford replied something along the lines of, 'The whole country has a problem with Minister Howlin.'
So Garda Kelly then informed Mr. Rochford that based on what he had said, he had a concern for him entering the event. Mr. Rochford made a couple of phone calls and then he came back to us and said, 'I'm going into the event and you're not going to stop me or you'll be sorry.' With that, he made an attempt to walk past us and we intervened and Garda Kelly informed Mr. Rochford that he was arresting him under 6 (recte) of the Public Order Act. Previous to that Garda Kelly had given Mr. Rochford a direction under Section 8 due to his irate manner."
88. Garda O'Brien described the Plaintiff's demeanour as follows (Day 7, page 87):
"When he came back on foot to attempt to walk into the event, he had a mindset, he seemed to have a mindset that he was going to come in no matter what was going to happen. He was using foul language and abusive terms towards Garda Kelly and I felt that he got a good few chances to leave the area prior to being arrested."
89. Detective Garda Lyons confirmed that the Plaintiff did mention Minister Howlin and that the Plaintiff "wasn't happy with Mr. Howlin and that he was present at the event" (Day 7, page 70).
90. The Plaintiff's initial evidence had been that he did not mention Minister Howlin to the Gardaí and that he had not even been aware at the time that Minister Howlin would be attending the event. The Plaintiff said he had only become aware of the Minister's attendance when he saw "the photographs in the paper afterwards" (Day 3, page 28).
91. The Plaintiff stated as follows (Day 3, page 31):
"I don't say anything about Brendan Howlin. I couldn't have said anything about Brendan Howlin. Brendan Howlin — Brendan Howlin — I couldn't see who was in at the event. So I couldn't know he was there, even.
[...]
the only Minister I would have known or would have thought would have been there was, and I think I mentioned this and I can be wrong about this was too, was Phil Hogan or not Phil Hogan, Kelly, he was a Minister for the Environment.
Q. Alan Kelly?
A. Alan Kelly, that's the man. That's the man I would have thought would have been there, not Brendan Howlin."
92. The Plaintiff repeated this assertion as follows (Day 3, pages 67/68):
"Q. All right. But at the same time, you knew that Mr. Howlin was here?
A. No.
Q. You didn't?
A. I didn't know anyone was there.
Q. You didn't read the invite.
A. I hadn't a clue who was there. The only person that I was there to see was Michael Sheehan."
93. The Plaintiff stated as follows (Day 3, page 73):
"A. There was no mention of Brendan Howlin.
Q. You never mentioned Brendan Howlin?
A. No mention of Brendan Howlin, none."
94. The Plaintiff subsequently recanted this evidence when it was put to him, by reference to the transcript of those earlier proceedings, that he had told the District Court that he had, in fact, made comments in relation to Minister Howlin to the Gardaí at the sod-turning ceremony (Day 3, pages 78/79).
95. Having carefully reviewed the evidence, and having regard, in particular, to the demeanour of the witnesses, this court is satisfied, on the balance of probabilities, that the Plaintiff had been using language in relation to Minister Howlin prior to his arrest which could reasonably be regarded as threatening and abusive. The Plaintiff's assertion that he had not known until after the event that Minister Howlin had been present at the sod-turning ceremony, and that the Plaintiff did not refer to Minister Howlin in exchanges with the Gardaí, is simply incredible. The Plaintiff's evidence in this regard is disproved by the following.
96. First, on the Plaintiff's own case, he had been in possession of a written invitation to the sod-turning ceremony and same had been in his car on the day of his arrest (Day 1, pages 141/142). The written invitation clearly indicates that Minister Howlin is one of two government ministers officiating at the event. Having regard to the Plaintiff's history with Minister Howlin (described next), it is simply incredible for the Plaintiff to suggest that he did not notice that the latter would be officiating at the event.
97. The Plaintiff had previously sent a series of emails to the Minister's office. The Plaintiff asserts that he received an email in response in January 2014 notifying him of the Minister's wish that no further communications be addressed to him in light of the Plaintiff's "offensive and cavalier" willingness to impugn the Minister's good name. (The Plaintiff provided copies of these emails during the course of the hearing). The Plaintiff confirmed in cross-examination that he resented that Minister Howlin had done this to him and that he had made complaints against the Minister to the Secretary of Dáil Éireann and the Standards in Public Office Commission ("SIPO") (Day 3, pages 64/65).
98. Having regard to this history, it defies belief that the Minister's involvement in the sod-turning ceremony would not have immediately registered with the Plaintiff when he received the written invitation. The Plaintiff is not a person who is indifferent to politics and might, therefore, not be expected to recognise the name of a government minister. Rather, the Plaintiff not only knew of Minister Howlin, but the Plaintiff had also made official complaints against him.
99. Secondly, the Plaintiff published a post on his Facebook account on 1 February 2016 describing his arrest. The narrative begins with the Plaintiff expressly stating that he had been arrested for trying "to attend a sod turning ceremony on the New Ross bypass by Minister Brendan Howlin". The content of this post confirms that the Plaintiff had been fully aware, on the day, that Minister Howlin would be officiating at the sod-turning ceremony.
100. Thirdly, the Plaintiff admitted, during the course of his evidence before the District Court in July 2016, that he had mentioned Minister Howlin in his exchanges with the Gardaí on 1 February 2016. See, in particular, page 71 of the District Court transcript.
102. The second principal factual dispute which emerged on the evidence is whether Garda Kelly made a direction pursuant to section 8 of the Criminal Justice (Public Order) Act 1994 requiring the Plaintiff to leave immediately the vicinity. Again, it is necessary to resolve this factual dispute because any assessment of the reasonableness of Garda Kelly's actions will be informed by whether he had made a direction. If this court were to find that Garda Kelly had not, in fact, made a direction, this would tend to undermine the legal basis for the arrest of the Plaintiff which had been predicated on a supposed failure to comply with the direction.
103. The Plaintiff alleges that there was "no mention" of a section 8 direction until he "got it in paper form in the summons" (Day 3, page 34). Garda Kelly and Garda O'Brien gave evidence of a direction having been made.
104. This court is satisfied on the evidence that Garda Kelly did make a direction pursuant to section 8. It is apparent from the chronology that Garda Kelly had, at all stages, dealt with the incident in a patient and proportionate manner. Garda Kelly had made all reasonable efforts to facilitate the Plaintiff, notwithstanding the latter's provocative behaviour. Garda Kelly had, for example, referred the matter to Sergeant Daly. The making of a direction would have been entirely consistent with Garda Kelly's conduct. It is of a piece with his patient, incremental approach that Garda Kelly would have afforded the Plaintiff the opportunity to leave the vicinity peaceably and would only have escalated to an arrest if necessary.
105. The Plaintiff's claim that he has no recollection of such a direction being given is incredible. The Plaintiff's own evidence establishes that he understood that his attempt to enter the marquee was done in defiance of the guards and this implies that he fully understood that he had been directed to leave the vicinity.
106. Moreover, the Plaintiff's evidence is contradicted by the content of a complaint which he sent via email to the Commissioner of An Garda Síochána on 21 February 2017. The Plaintiff describes his arrest as follows in the email:
"[...] I told Kelly that I did not take kindly to being made out to be a liar, and as this was a private event that the guards had no role to play in who was entering the event as private security were employed for that purpose. So I informed Kelly that I am going in and he informed me should I attempt to pass by him he would arrest me.
And he did citing section 6 and 8 of the public order act 1994."
107. As appears, the Plaintiff accepts that he had been given a warning in advance of his arrest, and that the relevant sections of the Criminal Justice (Public Order) Act 1994 had been invoked.
108. It should be emphasised that there is no suggestion whatsoever that it follows, as a corollary of the finding that Garda Kelly made a direction, that the Plaintiff committed a public order offence. Rather, it is reiterated that the Plaintiff has been acquitted and is presumed innocent. The finding goes to a separate and narrower issue, namely, whether Garda Kelly had reasonable grounds for exercising the statutory power of arrest. This court is satisfied that he did.
109. The third area of factual dispute is in respect of the traffic safety directions given to the Plaintiff.
110. The nature of the traffic restrictions in place were described as follows by Sergeant Daly in his evidence (Day 7, page 57):
"With all events there is an element of risk and risk management and to mitigate the risks that were involved where that location was, there was cones put out on the road to prevent any vehicles from stopping on the road. And to prevent people from stopping on the road, if one vehicle stops on the road, another person might stop behind it and another person might stop behind it, so we would keep the road clear of all traffic to make sure that there's no people walking in between cars or anything like that at all or across the road from cars that were parked on the side of the road. That's the mitigation that was put in place for where the event was taking place."
111. Sergeant Daly elaborated upon this point, in answer to a question posed by the Plaintiff, as follows (Day 7, page 59):
"As I said to you, Mr. Rochford, the reasons why traffic cones would be put out on a location like that was to ensure that no traffic parked there because from my experience in the Guards, if you ever attend a GAA match, if one car gets a parking space where they're not supposed to be parking, several people will follow suit and then it becomes quite difficult to manage. That's why we put the cones out, to make sure that we don't have any parking in certain locations. It's to mitigate the risks all round and to make sure that we don't engage with any further traffic issues that we cannot manage. Once we engage with it at the start we can manage them."
112. This court finds as a fact that the Gardaí were justified in requesting the Plaintiff to move both at the time of the first and the second interaction. On each occasion, the Plaintiff had parked his car in a manner which presented a potential traffic hazard and danger to road safety. In the second interaction, the Plaintiff had actually parked between cones delineating a "no parking" area.
113. The Plaintiff's objection to complying with what were entirely reasonable requests made on traffic safety grounds had been wrongheaded. Vehicular access/egress to the sod-turning ceremony had been from a public road with an 80 kmph speed limit and a continuous white line indicating no overtaking. A temporary car park had been laid out to facilitate attendees. It was reasonable for the Gardaí to restrict parking on the roadside. As explained in evidence, there is a risk that if one vehicle is parked on the road, the drivers of other vehicles might attempt to do the same. Indeed, the Plaintiff himself accepted this logic, referring to his own experience of parking on "match days" in his neighbourhood (Day 7, page 59):
"Yes. Yes, I appreciate that because you know where I live here and, I mean, every weekend with the rugby, soccer and with the GAA just up the road, we're jammed in with cars. But I understand that. [...]"
114. The Plaintiff also conceded that if Garda Kelly "genuinely felt that [the Plaintiff's] car was a danger to the traffic where it was, he was one hundred percent right in doing what he done" (Day 2, page 30).
115. The Plaintiff is highly critical of the fact that he had been asked whether he had an invitation to the sod-turning ceremony. With respect, there is no merit in this criticism. The Plaintiff's case is that he had been invited to the event by Councillor O'Connell and that the written invitation had been in his car on 1 February 2016. For reasons which have never been adequately explained, the Plaintiff failed to take the obvious step of producing his written invitation to the Gardaí. If the Plaintiff had genuinely intended to attend the sod-turning ceremony in a peaceable and orderly manner, then he should have parked his car in the temporary car park which had been laid out. The location of the car park had been indicated in an attachment to the written invitation. Instead, the Plaintiff conducted himself, from the very outset, in a manner which might reasonably be regarded as threatening and abusive. The Plaintiff sought to defy the reasonable traffic safety directions given to him by Garda Kelly and had used abusive language towards the Gardaí. Having regard to the Plaintiff's disorderly conduct, it would have been remiss of the Gardaí on duty at the roadside not to inquire as to his intentions. Put otherwise, the Plaintiff drew attention to himself by his unruly behaviour and it is entirely understandable why this prompted Garda Kelly to inquire whether he had an invitation. Thereafter, the Plaintiff began to use language in relation to Minister Howlin which could reasonably be regarded as threatening and abusive. In all the circumstances, the Plaintiff had, by his own conduct, forfeited any right which he might otherwise have had to enter the event.
116. For completeness, the Plaintiff's contention that it would never be appropriate for members of An Garda Síochána to have any role in checking invitations will be addressed briefly. The Plaintiff's contention is encapsulated in the following statement by him: "I can't see how a Garda could be in Garda uniform and be doing a doorman's job" (Day 1, page 43).
117. With respect, this contention is incorrect. There will be occasions where, for legitimate security reasons, access to a public place may be temporarily restricted to individuals holding a written invitation or other credentials. It will be appropriate for members of An Garda Síochána to ask individuals to produce their written invitations or other credentials. One obvious example would be a formal event conducted by the President of Ireland where access is restricted to invited dignitaries. Indeed, Garda Kelly himself gave direct evidence, from his own experience, of an event involving the then Prince of Wales where guests had been pre-vetted and were required to produce their written invitations to the Gardaí (Day 7, page 147; Day 8, page 111).
118. It is not possible, in the absence of evidence from Councillor Sheehan, to make any finding of fact as to whether Councillor Sheehan had arranged to meet the Plaintiff at the sod-turning ceremony and would have been prepared to vouch for his entry. The Plaintiff failed to call Councillor Sheehan as a witness before the High Court. As it happens, this issue is largely a red herring in circumstances where the Plaintiff himself has consistently said that Councillor Sheehan had not invited him to the event, but only had an informal arrangement to meet there. It was Councillor O'Connell, not Councillor Sheehan, who had given a written invitation to the Plaintiff.
119. Following his arrest, the Plaintiff had been charged with two offences contrary to the Criminal Justice (Public Order) Act 1994. The criminal prosecution was commenced by way of the charge sheet procedure: the Plaintiff was charged and then released on station bail.
120. The charge sheets, in relevant part, read as follows:
"On the 01/02/2016 at Camblin New Ross Wexford a public place, in said District Court Area of Wexford, having being found in said public place by a member of the Garda Siochana, namely Garda Pat Kelly who suspected with reasonable cause, that you - were acting in a manner contrary to Section 6 of the Criminal Justice Public Order Act 1994 and also, without lawful excuse were in a public place which gave rise to the reasonable apprehension for the safety of persons and property and the maintenance of the public peace and having been directed by the said member of the Garda Síochána to desist from acting in such a manner and leave immediately the vicinity of the place concerned in a peaceable and orderly manner did without lawful authority or reasonable excuse fail to comply with the direction given by the said member of the Garda Siochana."
"On the 01/02/2016 at Camblin New Ross Wexford a public place, in said District Court Area of Wexford, did use or engage in threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace might have been occasioned."
121. Garda Kelly had been the police officer who initiated the criminal prosecution. The decision to prosecute was subsequently reviewed by Superintendent John McDonald and he was satisfied on the basis of the Garda witness statements to allow the prosecution to proceed. The Superintendent explained his involvement as follows (Day 6, pages 29/30):
"Then subsequent to that, Judge, I would have received the investigation file with all of the statements from the Guards through their Sergeant. I think it was again Sergeant Daly. And I then — based on my authorisation from the DPP I can direct on certain matters for prosecution. So I read through all the statements and I was satisfied, based on the statements, that there was evidence there to present a case before the District Court. And I then subsequently ended up prosecuting the case in the District Court."
122. The Superintendent elaborated as follows (Day 6, page 32):
"So in this case, because of the evidence presented by Pat Kelly and the arrest, again, I was satisfied in my belief that it was reasonable, that the other information provided in all the Guards' statements would have provided me with sufficient evidence to be able to run a prosecution in the District Court. And had any aspect of that evidence, particularly for example if there was some issue over the arrest or something like that, I wouldn't have directed a prosecution. And I do that on behalf of the DPP. There's a general directive that allows us to take prosecutions to a certain level."
123. The criminal prosecution came on for hearing before the District Court (Judge Brennan) on 12 July 2016. The Plaintiff had been convicted on both counts. A fine of €300 was imposed in respect of the section 8 offence, with the section 6 offence being "taken into consideration" for the purpose of sentencing.
124. The Plaintiff brought an appeal against his conviction. The appeal came on for hearing before the Circuit Court (His Honour Judge Hickson) on 16 February 2017. The Plaintiff was acquitted on both counts.
125. It is apparent from the transcript that the Circuit Court judge framed the ultimate issue narrowly and as centring on the incident whereby the Plaintiff touched Garda Kelly's epaulette. The Circuit Court judge formulated the issue as follows (at page 24):
"And basically, the gist of that is that you were there, you moved away, you came back again, you came back, what the Guard says is that you badly behaved, you were aggressive, and you were irate, and you grabbed him by the epaulette. That's the core of what he — the case he's making against. That's the only case you really have to deal with. All the rest is padding and is wasting the Court's time."
126. The Circuit Court judge accepted (at page 62) that the purpose of the Plaintiff had been to turn the epaulette to allow him to read Garda Kelly's shoulder number:
"I'm satisfied on the very fair evidence given by Sergeant Kelly where he went further than he needed to go, that this was over-enthusiasm on your part to try and record his number. And because of that, and because you've gone through life until you're 70th birthday, I'll take all those factors into account and I'll give you the benefit of the doubt."
127. The Circuit Court judge had been complimentary of the "very fair" manner in which Garda Kelly had given his evidence (at page 61):
"I find Sergeant Kelly to be a very credible witness, and I may also say, a very fair witness. And why I've said he's fair is he has indicated in his evidence that there would be another interpretation could be placed on whether or not Mr Rochford grabbed his epaulette, That he may have been looking to identify the number."
128. Notwithstanding this assessment, the Plaintiff continues to make the following allegations against Garda Kelly (Day 1, page 18):
"Garda Pat Kelly is everything that a human being should not be. He is a liar and I swear to God, he is that. He is prepared to send people to prison for a long period of time by his lies. He is a vindictive person; he is prepared to do or say anything just as long as he comes up smelling of roses. His Superintendent (John McDonald) knew that he was, and he allowed him to continue with his criminal charges against me."
129. The Plaintiff submitted a complaint against Garda Kelly in relation to the criminal prosecution. Superintendent McDonald, in his evidence to the High Court, explained that he had not had any direct involvement in the criminal appeal before the Circuit Court. The Superintendent explained that, following the complaint, he had requested a report from the State Solicitor. The latter confirmed that Garda Kelly had been extremely fair in the evidence he gave in the Circuit Court and that his evidence had been given in a very fair, balanced and professional manner (Day 6, pages 37/38).
130. Both sides were content for the High Court to have regard to the transcript of the hearings before the District Court and Circuit Court, respectively. Neither side made any submission to the High Court on the question of the precise evidential status of the transcript. This is a question which might arise for further consideration in other claims for malicious prosecution. There may be cases where a claimant seeks to rely on findings made in the context of the criminal prosecution to establish their claim for malicious prosecution. The criminal court might, for example, have criticised the conduct of the prosecuting authorities and the claimant might seek to introduce this criticism in the context of the civil proceedings for malicious prosecution. It might be said to go to the question of whether there had been any reasonable or probable cause for pursuing the criminal prosecution.
131. The admissibility, as evidence, of the transcript of the criminal prosecution might give rise to particular difficulties in cases where the claim for malicious prosecution is being heard by a judge sitting with a jury. As appears from the discussion in Cully v. Commissioner of An Garda Síochána [2022] IECA 185 (at paragraphs 109 to 114), there may be cases where it might be prejudicial to allow a full transcript to be put before a jury. This concern does not arise in the present proceedings which have been heard without a jury.
132. It is not necessary, for the purpose of resolving the present proceedings, to address, in detail, questions as to the status of the transcript of the criminal prosecution. This is because the Circuit Court did not make any finding which might be regarded as having a direct bearing on the issues which fall to be determined as part of the adjudication on the claim for malicious prosecution. This is not a case where, for example, the criminal court had made a finding of misconduct on the part of the prosecuting authorities which might, in principle, be relevant to a subsequent claim for malicious prosecution. Here, the Circuit Court had determined the criminal appeal on a very narrow basis and made no findings on the issues which are the focus of the present proceedings, e.g. whether the Plaintiff had used language in relation to Minister Howlin prior to his arrest which might reasonably be regarded as threatening and abusive or whether Garda Kelly had made a direction pursuant to section 8 of the Criminal Justice (Public Order) Act 1994. If and insofar as the Circuit Court made any finding in relation to the conduct of the prosecuting authorities, it had been favourable: the judge had been complimentary of the "very fair" manner in which Garda Kelly had given his evidence.
133. Put otherwise, any potential "overlap" between findings made in the context of the criminal prosecution, and the findings which require to be made for the purpose of resolving the claim for malicious prosecution, is minimal.
136. The second allegation of a previous inconsistent statement relates to the Plaintiff. As discussed in detail at paragraphs 85 to 101 above, the Plaintiff's initial evidence to the High Court had been to the effect that he did not mention Minister Howlin to the Gardaí and that he had not been aware at the time that Minister Howlin would be attending the event. This evidence is inconsistent with his evidence to the District Court and recourse has been had to the transcript of the criminal prosecution for the purpose of assessing credibility.
137. One of the principal complaints made by the Plaintiff in these proceedings relates to the procurement and execution of a search warrant in respect of his home. The application for the search warrant had been grounded on a sworn information which referred to a number of posts which the Plaintiff had published to the Facebook platform.
138. It may assist the reader of this judgment in better understanding the chronology of events to pause here, and to set out extracts from the key Facebook posts.
"[...] My own arrest was for trying to attend a sod turning ceremony on the New Ross bypass by minister Brendan Howlin. When I arrived i was informed by garda Pat Kelly that it was all over, and to move on. So I moved and came back walking, when i arrived back garda Kelly told me i could not go near the event as it was private event. When i explained that it was our field paid for with our money and that it could not be private, he then went on to say it was by invitation only, and the guards were under orders only to let in invited people only. I requested the guest list, he said the was not one, he was told who was invited. So now i get pissed off very easily at anyone telling lies, i hate lies and liars. So anyway i said i was going in if he put a hand on me i would have him for assault, well he did he grabbed me and he put the handcuffs on me took me to the garda station, and charged me. But what upsets me most about this cunt Kelly is he spoke to me about what i put up here on Facebook, about the guards. Well what i put up here i will also write to the garda commissioner and the minister for justice and the Taoiseach, my mind and my thoughts are open to everyone, this page is open to the public. I and others like me should be of little or no interest to An Garda. We say what we have to say, so anyone can read it, the people that talk and plan in secret are the ones An Garda should be tracking. But as i said only about two thousand guards have brains the rest are just rubbish. Now for everyone who knows me i take no joy out anyone taking their own life, i feel great sorrow for humans, who find themselves taking their own lives, but Garda Kelly accused me of laughing at guards committing suicide, this could not be further from the truth. But i did accuse the top brass garda for putting too much pressure on garda who cannot take the strain. And i have also stated if they cannot take the strain they should leave the force. Now Garda Pat Kelly is another one that i have no problem in stating he is unfit for police work. He came at me today in a personal capacity, forgetting that it is people like me that were on the streets of Dublin lending our support to guards who are being made suffer major cutbacks and wage cuts. But garda Pat Kelly is just one of many guards who will suffer after losing the support and respect of us law-abiding and caring citizens. One thing is for certain if a bypass ceremony is private, and we have a minister performing the ceremony and the guards doing security for a private function why are we paying them, why are they being paid by a private company. You know i am wrong the guards are the clever ones we are fucking idiots, paying them."
140. The Plaintiff reposted the post above on 1 February 2017 with the following additional text:
"Now one year on i will face this Micky Mouse of a guard in the Circuit Court in Wexford that is on Thursday the 16th two weeks from now. He is a lying little rat, he is a very vindictive little rat. He thinks he is getting me because I beat some of his colleagues in other, court cases he even said to me on that day a year ago that i believed i was cleverer and better than anyone else, well no i know my limitations unlike him the dimwit he is. So two weeks time we will know who is right and who is wrong."
141. The Plaintiff published the following Facebook post on 17 February 2017, i.e. the day following his acquittal, on appeal, by the Circuit Court:
"[...] The guards in this case just wanted to get a successful prosecution against me, because i will not allow any corrupt acts carried out by guards or judges go by unnoticed.
These three guards lied about me they colluded to have a criminal conviction logged against my name. Well now it is them who will have convictions honest to God convictions against them. Perjury is a very serious offence in every country. I intend to have them face such charges. I have some time to lodge a complaint, but first i must wait for other investigations to be completed, you see i was so confident that these guards would be found out in their lies that i had already made complaints to other investigation bodies, and my last complaint will be delivered to the Standards In Public Office and the Public Account Committee on Monday morning by hand.
[...]
I want to thank about 21,000 who have commented on Integrity Ireland post and video regarding the case, it gives me hope that people do notice the injustices that is going in our courts, and the corruption within An Garda. Yes i need your support and help to help me continue my battle for the guards and the district courts to be reformed, this is necessary if Ireland is to have a peaceful future, impartial policing and justice is the bedrock of any democracy."
145. The Plaintiff published the following post on 20 February 2017 above a photograph taken of a demonstration outside a Garda Station:
"This is Becky Hanton ringing Sergeant Pat Kelly to come out and tell the people what it was like being questioned by Paddy Rochford in Wexford circuit court, and she really wanted him to lie so she the people could see his red face, yes he gets very red in the face when he gets caught out telling lies which is every minute.
My supporters were calling him red Pat, his chief superintendent will be calling him something else all together.
Himself and his mates will think very hard before they bring false charges again. They will have a black mark against their names, and i am sure my case will be mentioned against them in court in the future, like some solicitor saying hey red Pat didn't you get caught out lying in court before. Ah yes lying is bad it is very easy to remember the truth but very difficult to remember the lies. i will be there for the next demonstration and I will invite red Pat out to address the crowd."
146. Finally, reference should be made to a Facebook post published by the Plaintiff on 17 May 2017. Although this Facebook post is subsequent to the execution of the search warrant, it is potentially relevant to an argument made by the Plaintiff as to his willingness to withdraw his posts:
"I was off the air because the guards raided my home yesterday.
Sergeant Pat Kelly has alleged that I am harassing him on Facebook, total lies. I don't want anything to do with him. He got caught out telling porkies in court against me, in an attempt to blacken my name and get me imprisoned, on false charges.
I have the right to my good name and my freedom, I also have the right to express my thoughts, and my feelings even though i may be wrong, then it is up to people who disagree with me to argue the point, and prove me wrong.
I proved Sgt Kelly wrong in the circuit court in Wexford on the 16th of February this year, it is recorded in the court files.
Now Sgt Kelly is being investigated and as far as i know this will end up as a criminal investigation. Now Sgt Kelly is once again attempting to have a criminal conviction marked against my person, and the possibility of a prison sentence, to me this is vindictive, and i am fairly certain it will adverse effects on Sgt Kelly.
Sgt Kelly arrested me unlawfully, he detained me against my consent, he brought a fraudulent prosecution against me, I was totally innocent of the charges, I proved that in court against all the odds, there was three of them Detective Lyons Garda Pat O'Brien and of course Sgt Pat Kelly, now Sgt Kelly in the circuit court introduced another culprit he is Sgt Richard Daly, now Daly's name was never brought up until Kelly realised that my questioning was proving too much of a challenge for him, Kelly stated that it was Daly who told him what to do regarding me.
Now right here i am not harassing Sgt Pat Kelly I am just relaying the happenings of a court case, which i am entitled to do, but if Kelly wants to rebut then I am open to that. By the way i do not fight dirty, i tell the truth only, if i ever do lie i won't mean to.
The guards cleaned out my house, it has never been this tidy in years, they left the bathroom alone it was the only room that escaped. So the next time they are back they won't get away until they do the bathroom as well, we are paying them well so we should be satisfied when they leave, OK I was delighted.
I know I should slag them off but they were professional, they did not abuse my wife or myself, yes we were humiliated and my was still crying this morning asking over and over again, what did she do wrong, the detectives saw that she was seriously upset, and she just could not stop crying, now i blame this on one vindictive guard that is Sgt Pat Kelly, he done wrong and now he knows it has backfired on him and he just cannot say sorry, he wants to inflict more pain on my wife and me. The day is near when corrupt guards will be far and few between, until then i will do as much as i can to bring an end to these sick guards and their corrupt ways.
Good to be back going on my rants, i am the best ranter on Facebook. and if the guards cant stick the heat well they should get out of the uniform."
147. Garda Kelly made a complaint, alleging harassment, against the Plaintiff on either 30 or 31 March 2017 (Day 7, page 132 and Day 8, page 29).
148. The complaint of harassment related, inter alia, to Facebook posts which were alleged to have been published by the Plaintiff. The impugned posts referred to Garda Kelly in highly derogatory terms and accused him of perjury. Garda Kelly had not held a user account with Facebook at the material time, but had been alerted to the existence of the posts by friends, family and colleagues. The complaint also related to emails which had been sent by the Plaintiff to more senior Gardaí. In the event, however, the lead investigating officer attached less significance to these emails: see paragraph 160 below.
149. Garda Kelly has explained, as follows, his rationale for making the complaint at the time that he did (Day 8, pages 36/37):
"My belief — my hope, Judge, was that when the matter was finalised in the [Circuit] Court, the situation may end, and it didn't, Judge. I then transferred on promotion to Kilkenny, Judge, but it continued there. I hoped, going to Kilkenny, it might, I might be able to shake it off. I wasn't, Judge. It continued. Speaking from my own thoughts and that, Judge, I was hoping that the finalisation of the case in the Circuit Court may bring some sort of an end to the matter. It didn't, Judge. And then for me, Judge, when my family, Judge, my brother, Judge, and my sister-in-law became aware of this video, and this video at my time of viewing had over 40,000 interactions with the video, Judge, at that stage and then following on, you know, it continued to get worse, I felt, Judge, after the Circuit Court case, up to the point, Judge, of a phone call, and I don't know who made the phone call, but I had no problem with anybody else, the phone call alleged that I was involved in domestic abuse against my then pregnant partner who's now my wife, Judge, and at that stage, the build up over 14 months, Judge, I felt I just couldn't take any more. Did I feel harassed throughout that 14 months? Yes, I did, Judge. It wasn't just after the Circuit Court case. I felt harassed for a long period before that."
150. The video referred to above is that described earlier at paragraphs 142 to 144. Garda Kelly described the telephone call to Kilkenny Garda Station, alleging domestic abuse against his then pregnant partner, as "the final straw" for him (Day 8, page 37).
"I hereby declare that this statement is true to the best of my knowledge and belief and that I make it knowing that if it is tendered in evidence I will be liable to prosecution if I state in it anything which I know to be false or do not believe to be true."
152. Garda Kelly initialled each page, Sergeant O'Connell signed each page, and both guards endorsed a full signature at the end of the statement (Day 7, page 132).
153. The original handwritten version of the complaint was produced during the course of the High Court hearing and its veracity has been confirmed by Garda Kelly in his evidence. Prior to this, the Defendants had produced only a typed version which bears no signature nor date. As discussed at paragraphs 10 to 13 above, the original handwritten version should have been produced by way of discovery.
154. Detective Sergeant Sheriff has given direct evidence to the effect that he had met Garda Kelly after he made the statement of complaint, and he confirmed that the typed version was the statement of complaint (Day 7, page 6).
155. This court is satisfied, on the balance of probabilities, that Garda Kelly did make a complaint on either 30 or 31 March 2017 and that the handwritten version, which has been produced in court, is genuine. This court is also satisfied that the fact that the handwritten version is not dated does not affect its veracity. Still less does it undermine the subsequent application for a search warrant. Garda Kelly has confirmed the authenticity of the statement of complaint.
157. Returning to the chronology of the investigation, Superintendent McDonald gave evidence to the effect that he felt that the complaint of harassment should be independently investigated away from the Garda Station in New Ross where Garda Kelly had previously been deployed. On that basis, the Superintendent referred the complaint on to the Chief Superintendent in Wexford (Day 6, pages 40 and 43). Chief Superintendent John Roche, who was the divisional officer at the time, appointed Detective Inspector John Hunt to investigate the complaint of harassment. Detective Inspector Hunt was a qualified senior investigating officer deployed in the Wexford Division. Detective Sergeant Rory Sheriff, who was based in Enniscorthy, had been assigned to assist in the investigation.
158. The two investigating officers viewed together a number of Facebook posts published to an account under the username "Paddy Rochford" (Day 6, page 62). The posts included the video/audio recording played in court: see paragraphs 142 and 143 above. The Plaintiff has admitted, in the course of these High Court proceedings, that this account is operated by him.
159. Detective Inspector Hunt stated, in evidence, that he was satisfied from the content of the Facebook posts that all the ingredients for the statutory offence of harassment were there and that this remains his belief (Day 6, pages 64, 77, and 78).
"As far as I recall, there were, there was evidence of e-mails, and I did draw a distinction between the posts, which we have heard, to the Director of Public Prosecutions, I did draw a distinction between that and the writing to the Chief Superintendent. Because that was private and directed to Mr. Kelly's boss — I didn't say 'boss', whatever, but directed to the Chief Superintendent and it was an internal complaint. So large members of the public did not see it. And therefore, I differentiated between that and the phone calls and the e-mail, although it was part of his complaint, I was not satisfied that that was harassment, but I was satisfied that the posts were clearly harassment, and I made that distinction to the Director of Public Prosecutions at the time."
161. Detective Inspector Hunt explained that the challenge in this type of case is to prove that the accused person is "the person that pressed the buttons", i.e. the person who published the Facebook posts. Detective Inspector Hunt explained that to secure that evidence, a forensic computer examiner would have to examine the electronic devices used to publish the posts. Detective Inspector Hunt offered the opinion, based on his experience in detective work, that the only option is to obtain a search warrant to seize the electronic devices which were used. Detective Inspector Hunt stated that if, for example, you go and interview somebody casually about evidence, it's very likely that it will disappear (Day 6, page 65.)
162. Detective Sergeant Sheriff explained the rationale for the decision to apply for a search warrant as follows (Day 7, page 117):
"Detective Inspector Hunt and myself would have spoken in respect of the trajectory of the investigation, what way it should proceed, and it was agreed and retired Detective Inspector Hunt said that he was directed — Now, directed is a strong term. It would've been agreed that the best way to gather primary evidence in respect of the allegations made was to get a warrant, enter the property to seize devices capable of transmitting posts via social media. So as I said, I was a subordinate of Detective Inspector Hunt at the time and it would have been agreed that a warrant was required to retrieve what we believed was the best possible evidence to proceed with this investigation."
163. Detective Sergeant Sheriff gave evidence that he applied for a search warrant as follows (Day 6, page 105):
"On 16th May 2017 I swore an information before Judge Gerard Haughton at Wexford District Court. I outlined in the information what my reasonable belief was, that an offence had been committed, and I required a warrant to search for evidence in respect of that allegation. And I was specific in the information swearing, that I sought a warrant to search for electronic devices capable of posting material on social media."
164. To avoid disrupting the flow of the narrative, the content of the sworn information will not be replicated here but is to be found at paragraph 180 below.
165. Having regard to an argument which arose in the course of these High Court proceedings, it should be recorded here that Detective Sergeant Sheriff confirmed that Garda Kelly's statement of complaint was not put before the District Court judge (Day 6, page 128; Day 7, page 10).
166. Detective Sergeant Sheriff described the execution of the search warrant as follows (Day 6, pages 120, 121, 122, and 123):
"Once I was issued with the warrant, Judge, I proceeded to New Ross to carry out the search. I was supervising the search and there was six members present in total, all members of Detective Branch in Enniscorthy where I was the supervisory Detective Sergeant. There was no uniformed people, there was no marked Garda cars. They were unmarked Garda vehicles that attended at Pondfields that day."
[...]
"I showed my official identification. Present in the property were Paddy Rochford and his wife, Catherine. I introduced myself again and showed my official identification. I showed and explained the warrant I was in possession of and I explained it in layman's terms, I explained in ordinary English what the warrant was for and what I was searching for."
[...]
"I explained to Mr. and Mrs. Rochford that an allegation of harassment had been made against him. I explained that I had a warrant issued by the Court and what I was there to search for."
[...]
"From my recollection, the first person that opened the door was Mrs. Rochford and there was no issue with Mrs. Rochford. Mr. Rochford was very irate initially but did calm down relatively quickly, Judge, when I explained it. There was no physical confrontation, there was no restraint, there was no in any way argy-bargy. I explained, went into the house, showed the warrant. When I spoke what it was for and I explained, as I would in any situation like this, that it will be done as discreetly and sensitively as possible. Which it was, Judge."
[...]
"Well, the search concluded at 15:00hrs, so it was approximately one hour and five minutes we were there. I know that there was a request to have items returned as quickly as possible. And, Judge, there was items returned to Mrs. Rochford approximately three days later. Between three and ten days later, all items bar four were returned. I gave my word to both Paddy Rochford and Catherine Rochford that any items that we did not believe were not necessary for the investigation would be returned, and that was work carried out. And in my experience within An Garda Síochána, the return of those items was done as expeditiously — more expeditiously than I've seen in other investigations."
167. During the period May to June 2017, subsequent to the execution of the search warrant, D/Sergeant Sheriff took a number of statements from friends, relatives and colleagues of Garda Kelly who had seen the Facebook posts and brought the posts to his attention.
168. A number of the devices which had been seized from the Plaintiff's house were examined. The results of that examination were summarised as follows by D/Inspector Hunt (Day 6, pages 66/67):
"[...] the devices were examined and there was evidence on two of them that Mr. Rochford — that were in Mr. Rochford's house. So having reviewed all that and then saw that there was evidence on these electronic devices after the examiner looked at them. So there was evidence on them of those posts and various other things, the video and that kind of thing that had been in evidence. So what was clear to me is that it looked very likely that Mr. Rochford had sent those and had deliberately sent them out about Mr. Kelly"
169. Having regard to a point raised in cross-examination by the Plaintiff, it is appropriate to set out D/Sergeant Sheriff's explanation for not examining Garda Kelly's electronic devices (Day 6, page 131):
"There was no allegation, Judge, that anything was sent directly to Sergeant Kelly's own personal phone. These were comments made by Mr. Rochford on a public Facebook page that were viewed by his family and friends and subsequently Sergeant Kelly. There was no requirement therefore to view Sergeant Kelly's phone. He did not say in his Statement of Complaint that anything was sent to him directly on his own phone."
170. Detective Inspector Hunt then made arrangements for the Plaintiff to attend at New Ross Garda Station, by appointment, for the purpose of an arrest and interview. The Plaintiff himself confirmed in evidence that he appreciated the kindness shown to him of being allowed to attend by appointment (Day 2, page 199). Indeed, the Plaintiff described the interview itself as "all very jolly" (Day 1, page 59). The Plaintiff also stated that he was treated "perfectly gently" and "nicely" and he had no complaints whatsoever to make about it (Day 5, page 169; Day 6, page 10).
171. The arrest and interview took place on 7 June 2018 at New Ross Garda Station. Detective Inspector Hunt described the arrest as follows (Day 6, pages 68/69 and pages 82/83):
"So I arrested him by appointment. I suppose taking into consideration the man's age and the fact that he clearly wasn't going to avoid us or anything like that, for the convenience of Mr. Rochford that was done. But nonetheless he had to be arrested and because the protections provided by Section 4 of the Criminal Justice Act — So you've an independent Member in Charge, you have access to a solicitor, his Notice of Rights, all of those protections are there for Mr. Rochford. It would have been very unfair of me, I believe, to go out to his house and ask him questions where there's no supervision. There's video cameras and video recordings, digital recording of the interviews, so that there can never be any doubt about his treatment and how his rights are vindicated and that's why that was done. So met him. The interview was read out there and he declined, as is his right, with his solicitor present. He declined to answer most of the questions, not all of them."
[...]
"Judge, when I and Detective Sergeant Sheriff questioned Mr. Rochford, he declined to answer questions, which is his right, which in the circumstances made the proving of the case, as it turned out, not possible beyond all reasonable doubt. Mr. Rochford has openly admitted in court here, on sworn evidence, that he has done that, but that wasn't the case when he was interviewed under caution after his arrest."
172. A memo of the interview was adduced in evidence before this court and accepted as accurate by the Plaintiff (Day 5, page 170). It is apparent from the memo of the interview that the Plaintiff had been accompanied by his solicitor.
173. Detective Inspector Hunt next sought, through the Director of Public Prosecutions, Mutual Legal Assistance from the United States of America ("MLA request"). This was done with a view to establishing, to the criminal standard of proof, that the Plaintiff had been the person publishing the Facebook posts. The MLA request was declined, seemingly on the grounds that there is a lack of correspondence between the domestic law offence of harassment and any offences punishable under the laws of the USA.
174. At the end of the investigation, Detective Inspector Hunt sent the file back to Superintendent McDonald. The Superintendent explained, in his evidence, that this would be normal practice because the file would go from his office to the Director of Public Prosecutions. Detective Inspector Hunt had recommended no prosecution because critical evidence, which would be required to convict before a judge and jury, was absent because of the non-availability of Mutual Legal Assistance.
175. Superintendent McDonald described the evidential deficit as follows (Day 6, page 44):
"[...] during the course of Mr. Rochford's detention he made no admissions as to the ownership of what we believe to be the equipment that these comments were sent out on. And secondly, what normally happens is that when something is on these devices, Facebook or that, you have to request what's known as a 'mutual assistance request' through the Director of Public Prosecutions to seek the IP details in the background as to who was the owner of the Facebook account. And because there was no comparable offence on the statutes in America as harassment that we have here, on that basis that request wasn't acceded to. So therefore that was a huge deficit in bringing it before a judge and jury."
176. Superintendent McDonald provided a brief report to the DPP, agreeing with what Detective Inspector Hunt had said, but asking whether a prosecution could proceed, even in the absence of Mutual Legal Assistance, having regard to the information that was gathered during the investigation (Day 6, page 41).
177. The file was submitted to the Office of the Director of Public Prosecutions on 17 August 2018. The Office of the DPP directed that no prosecution be brought on 10 September 2018. This was notified to the Gardaí on 11 September 2018. Superintendent McDonald wrote to Detective Inspector Hunt requesting him to notify Garda Kelly and to hand him the pro forma letter of appeal. Through inadvertence, Superintendent McDonald did not write to the Plaintiff at this time. Superintendent McDonald ultimately wrote to the Plaintiff on 5 October 2020.
178. Crucially, however, it is apparent from the content of Facebook posts which he published in October 2018 that the Plaintiff had been informed at that time by other Gardaí that there would be no prosecution. In particular, the Plaintiff published the following post on 5 October 2018:
"I received good news from An Garda this afternoon. There is no charges to be brought against me regarding the complaint made by Sergeant Pat Kelly about me harassing him by e-mails, telephone and Facebook. The DPP decided there would be no charges. [...]".
179. In the circumstances, there cannot be any cause of action in relation to the supposed "delay" between the period October 2018 and the letter of 5 October 2020.
"I have reasonable grounds for suspecting that evidence of or relating to the commission of an offence referred to in Section 10(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997 (as substituted by Section 6(1)(a) of the Criminal Justice Act 2006), to wit; Harassment contrary to Section 10 of the Non Fatal Offences against the Person Act 1997 an arrestable offence (within the meaning of Section 2(1) of the Criminal Law Act, 1997, as amended by Section 8 of the Criminal Justice Act, 2006), is to be found in a place, namely: 53 Pondfields, New Ross, Co. Wexford
The basis for such grounds is that an official statement of complaint has been made to Gardai by Sergeant Patrick Kelly of Kilkenny Garda Station. Prior to being promoted Sergeant Kelly was a Garda Based at New Ross Garda Station. On 01/02/16 Sergeant Kelly arrested a Mr. Patrick Rochford at Camblin New Ross, Co. Wexford a public place under the Criminal Justice (Public Order) Act 1994. As a result of this Patrick Rochford was convicted in the District Court but appealed his conviction to the Circuit Court. Since the date of his arrest Patrick Rochford has continuously posted allegations against Sergeant Kelly on his Facebook page and posted a video on Facebook making allegations of misconduct against Sergeant Kelly and using extremely offensive language which has caused embarrassment to Sergeant Kelly. Patrick Rochford has made contact with the Chief Superintendents office in Kilkenny and has sent emails and made telephone calls, again calling Sergeant Kelly's character into question and calling him corrupt and on the 23/03/17 Gardai in Kilkenny received a telephone call from a male believed to be Patrick Rochford who made allegations of misconduct against a female member by Sergeant Kelly and outlined that Sergeant Kelly lives in Waterford. Patrick Rochford has posted on Facebook that he and others should march on members homes. Patrick Rochford has contacted the offices of the Minister for Justice and the Garda Commissioner also making allegations of corruption against Sergeant Kelly. The continued harassment of Sergeant Kelly is causing him extreme distress and embarrassment and is also a cause of great upset and embarrassment to his family and friends. This harassment has been ongoing for approximately fifteen months and has caused much distress to Sergeant Patrick Kelly. Enquiries carried out and facebook postings viewed by Gardai indicates that the source of these messages is Patrick Rochford of 53 Pondfields, New Ross, Co. Wexford who is forwarding these messages via Facebook and other social media outlets. Gardai require a warrant under this act to search for electronic devices capable of forwarding messages on social media. I hereby apply for a warrant to search the said place and any persons found at the said place pursuant to the provisions of Section 10(1) of the Criminal Justice (Miscellaneous Provisions) Act, 1997 (as substituted by Section 6(1)(a) of the Criminal Justice Act 2006)."
181. The first head of claim advanced by the Plaintiff is that his arrest on 1 February 2016 was unlawful and entailed the tort of false imprisonment.
182. It is a full defence to a claim for false imprisonment or wrongful arrest that the detention was pursuant to lawful authority. Here, the Defendants contend that the Plaintiff had been lawfully arrested pursuant to the Criminal Justice (Public Order) Act 1994. It is necessary, therefore, to consider the circumstances in which the power of arrest arises under that Act.
183. Section 24 of the Criminal Justice (Public Order) Act 1994 provides that where a member of the Garda Síochána finds any person committing an offence under a "relevant provision", the member may arrest such person without warrant. The definition of "relevant provision" includes section 6 and section 8 of the Act.
184. Section 6(1) of the Act provides as follows:
"It shall be an offence for any person in a public place to use or engage in any threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned."
185. Section 8(1) of the Act provides as follows:
"Where a member of the Garda Síochána finds a person in a public place and suspects, with reasonable cause, that such person—
(a) is or has been acting in a manner contrary to the provisions of section 4, 5, 6, 7 or 9, or
(b) without lawful authority or reasonable excuse, is acting in a manner which consists of loitering in a public place in circumstances, which may include the company of other persons, that give rise to a reasonable apprehension for the safety of persons or the safety of property or for the maintenance of the public peace,
the member may direct the person so suspected to do either or both of the following, that is to say:
(i) desist from acting in such a manner, and
(ii) leave immediately the vicinity of the place concerned in a peaceable or orderly manner."
186. Section 8(2) of the Act provides that it shall be an offence for any person, without lawful authority or reasonable excuse, to fail to comply with a direction given by a member of the Garda Síochána under the section.
187. For ease of exposition, the shorthand "contrary to public order" will be used, as convenient, to describe the statutory concepts of a breach of the peace and a reasonable apprehension for the safety of persons.
188. On the facts of the present case, Garda Kelly had reasonable cause to suspect that the Plaintiff was committing an offence contrary to section 6 of the Act. The Plaintiff's behaviour has been summarised above, in particular, at paragraphs 40 to 54 and paragraphs 85 to 101. As appears, the Plaintiff had used abusive language, asking the guards were they "fucking stupid" and calling them "corrupt". The Plaintiff threatened to come after Garda Kelly "as a man" and had touched Garda Kelly's epaulette without his consent.
189. The Plaintiff had engaged in behaviour of a nature such that there was reasonable cause to suspect that a breach of the peace would be provoked or occasioned. There was also reasonable cause to suspect that the Plaintiff had the requisite mens rea, i.e. actual intent or recklessness. The Plaintiff's behaviour was such that there was reasonable cause for Garda Kelly to have a "reasonable apprehension" for the safety of persons and for the maintenance of the public peace such as to justify the making of a direction pursuant to section 8 of the Act of 1994. Again as summarised above, the Plaintiff had used language in connection with Minister Howlin specifically which might reasonably be regarded as threatening and abusive and contrary to public order.
190. Having regard to the Plaintiff's behaviour, Garda Kelly had reasonable cause to direct the Plaintiff to leave immediately the vicinity of the place concerned in a peaceable or orderly manner. Garda Kelly purported to make such a direction pursuant to section 8 of the Act. The Plaintiff failed to comply with this purported direction and indicated, instead, that he intended "going in" to the marquee regardless. Accordingly, Garda Kelly had lawful authority to make an arrest, without a warrant, pursuant to section 24 of the Act.
191. The Plaintiff's claim for wrongful arrest is predicated, primarily, on an assertion that he had not engaged in behaviour in relation to Minister Howlin which might reasonably have been regarded as threatening or abusive and contrary to public order. Indeed, the Plaintiff's initial evidence had been to the effect that he had not even known that Minister Howlin had been in attendance at the event. This assertion has been found by this court to be untrue for the reasons explained earlier. The Plaintiff has also asserted that Garda Kelly did not direct him to immediately leave the vicinity. Again, this assertion has been rejected by this court for the reasons explained earlier (at paragraphs 85 to 101).
192. Other than make these two unjustified assertions, the Plaintiff has made no meaningful attempt to challenge the legal basis for the arrest. The Plaintiff did not, for example, seek to argue that the arrest took place other than in a "public place". Indeed, the entire thrust of the Plaintiff's case is that the sod-turning ceremony was taking place on publicly owned land. (See, for example, Day 5, page 93).
193. The only submission made by the Plaintiff, which might touch upon the legal basis of the arrest, was as follows. The Plaintiff has queried whether a breach of the peace might realistically have occurred when he was on his own with the Gardaí. This submission is not well founded for two reasons. First, the principal factor which gave rise to a reasonable apprehension for the safety of persons and for the maintenance of the public peace was that the Plaintiff intended to go into the marquee where Minister Howlin was present. Secondly, the Supreme Court has confirmed that the fact that only members of An Garda Síochána were present during an alleged offence involving the occasioning of a breach of the peace did not preclude the possibility of the offence being carried out: Clifford v. Director of Public Prosecutions [2013] IESC 43, [2013] 2 IR 396.
195. The second head of claim advanced by the Plaintiff is that the prosecution for the alleged public order offences was malicious.
196. The ingredients of the tort of malicious prosecution have been summarised as follows by the Supreme Court in McIntyre v. Lewis [1991] 1 IR 121 (at page 132):
"To succeed in an action for malicious prosecution, the plaintiff must prove:—
(i) that the criminal proceedings terminated in his favour;
(ii) that the defendant instituted and/or participated in the proceedings maliciously;
(iii) that there was no reasonable or probable cause for such proceedings;
(iv) that the plaintiff suffered damage."
197. There has been little discussion in the case law to date as what precisely the requirement that there be "no reasonable or probable cause" for the prosecution entails. On one view, it might require no more than that the prosecutor have an honest belief that the person to be charged committed the alleged offence and that there are objective grounds for that belief. On an alternative view, it might require that the prosecutor must also have reasonable or probable cause for considering that there is a reasonable prospect of securing a conviction. These are two subtly different thresholds. The latter is a higher threshold and requires an assessment of the admissibility, reliability and credibility of the available evidence. It approximates more closely to the threshold which the Director of Public Prosecutions applies under the Guidelines for Prosecutors (December 2019).
198. The question of the threshold to be applied has not been argued in these proceedings. It is proposed, therefore, to adopt the pragmatic approach of assessing the case by reference to both thresholds. Any elaboration upon the threshold must await a case where the question has been fully argued.
199. The parameters of the tort of malicious prosecution are designed to strike a balance between the public interest in ensuring the effective investigation and prosecution of alleged criminal offences, and the parallel public interest in ensuring that individuals who have been improperly prosecuted are afforded a remedy. It would have a chilling effect on the prosecution of suspected criminal offences were the prosecuting authorities to be exposed to a claim for monetary compensation merely because the criminal prosecution did not succeed. The fact that a criminal prosecution has resulted in an acquittal does not necessarily indicate that there has been any wrongdoing on the part of the prosecuting authorities. There are many reasons why a criminal prosecution, grounded on reasonable or probable cause, may not succeed on the day. For example, a witness might not "swear up" or their credibility might be undermined in cross-examination, or a novel legal argument might emerge at the hearing.
200. It is in the public interest that the prosecuting authorities can exercise their discretion independently, uninhibited by the fear that even a bona fide and objectively-reasonable decision to pursue a criminal prosecution might result in tortious liability.
201. Accordingly, an acquittal, without more, does not trigger an automatic right to monetary damages. The ingredients of the tort are intended to ensure that it is necessary to establish matters above and beyond the mere fact of an acquittal. It must be established that there was no reasonable or probable cause for the prosecution and that same was motivated by malice. The requirement for malice represents a distinct ingredient, but there may be extreme cases where it is possible to infer malice from the sheer unreasonableness of the prosecution.
202. The tort of malicious prosecution must be seen in its broader context. There are a number of safeguards built-in to the criminal justice system which are intended to vouchsafe against an abuse of the criminal process. There is express statutory provision for addressing potential miscarriages of justice under the Criminal Procedure Act 1993. There is also a parallel mechanism whereby complaints may be made to the Office of the Police Ombudsman ("Fiosrú") (the successor to the Garda Síochána Ombudsman Commission ("GSOC")). This allows, in an appropriate case, for the disciplining of police officers who have been found to have been involved in a malicious prosecution.
203. The claim for malicious prosecution in the present proceedings relates to the public order offences alone. As explained earlier, no criminal prosecution was pursued in relation to the complaint of harassment.
204. The first issue to be addressed is the identity of the "prosecutor". The Plaintiff advances the claim of malicious prosecution against the Garda who instituted the criminal prosecution; the Superintendent who allowed the prosecution to proceed and acted as court presenter; and the Director of Public Prosecutions. The Plaintiff addressed no submissions to the court as to whether some or all of these entities should be regarded as the "prosecutor" for the purpose of his claim for malicious prosecution.
205. In the absence of submissions on this point, it is proposed to adopt the pragmatic approach of assuming, in favour of the Plaintiff, that both the Garda and the Superintendent might, in principle, be regarded as the prosecutor. The precise legal test to be applied in identifying a prosecutor should be left over for determination in another case, where it is necessary for the resolution of those proceedings.
206. In contradistinction to many criminal prosecutions, the Garda who instituted the criminal prosecution in the present case, by way of the charge sheet procedure, had been a witness to the alleged offences. In many other cases, the decision to institute a criminal prosecution will have been based on the narrative of the complainant and/or a third party witness. In such cases, an issue may arise as to whether it was reasonable for the Gardaí to rely on their narrative as a reliable basis for the institution of a criminal prosecution. Here, the position is more straightforward: Garda Kelly's decision was informed by his own observation of the events said to constitute the public order offences.
208. The onus of proof lies with the Plaintiff to establish that there was no reasonable or probable cause for the institution of a criminal prosecution. Far from discharging this onus, the Plaintiff made no meaningful attempt to address this issue other than to assert that he had not engaged in behaviour in relation to Minister Howlin which might reasonably have been regarded as threatening or abusive and contrary to public order. The assertion has been found by this court to be untrue for the reasons explained earlier. The Plaintiff did not challenge the statutory basis for the criminal prosecution. The Plaintiff did not, for example, seek to argue that the arrest took place other than in a "public place". Indeed, the entire thrust of the Plaintiff's case is that the sod-turning ceremony was taking place on publicly owned land. (See, for example, Day 5, page 93).
209. The only submission made by the Plaintiff, which might touch upon the legal basis of the criminal prosecution, was as follows. The Plaintiff has queried whether a breach of the peace might realistically have occurred when he was on his own with the Gardaí. This submission is not well founded for two reasons. First, the principal factor which gave rise to a reasonable apprehension for the safety of persons and for the maintenance of the public peace was that the Plaintiff intended to go into the marquee where Minister Howlin was present. Secondly, the Supreme Court has confirmed that the fact that only members of An Garda Síochána were present during an alleged offence involving the occasioning of a breach of the peace did not preclude the possibility of the offence being carried out: Clifford v. Director of Public Prosecutions [2013] IESC 43, [2013] 2 IR 396.
210. It is necessary next to consider the position of Superintendent McDonald. The Superintendent explained in evidence that, as commanding officer, he would have discretion to direct that the criminal prosecution not proceed, or to refer same to the Director of Public Prosecutions for directions. Having reviewed the statements of the Gardaí involved, the Superintendent was satisfied that the criminal prosecution should proceed. The statements of the Gardaí have been proved in evidence in these proceedings. This court is satisfied that the content of those statements did disclose reasonable cause for the criminal prosecution. Were the events, as described in the witness statements, to be established in evidence at trial, this would have provided a legal basis for conviction and there would have been a reasonable prospect of conviction. This court is also satisfied that it was entirely reasonable for Superintendent McDonald to have relied on the witness statements in deciding whether the criminal prosecution should proceed. There was nothing to suggest that the content of the witness statements was inaccurate.
211. Not only has the Plaintiff failed to establish that there was no reasonable or probable cause for the institution of a criminal prosecution, he has also failed to establish that either Garda Kelly or Superintendent McDonald acted with malice. Thus, one of the crucial proofs for a claim for malicious prosecution is missing. The Plaintiff has been unable to point to any factor which might plausibly support an inference of malice. There has been no suggestion, for example, that there was a history of bad blood between himself and Garda Kelly. There is nothing in the conduct of Garda Kelly on 1 February 2016 which might imply that he had any animus towards the Plaintiff. Rather, the opposite is true. Garda Kelly displayed great patience and politeness towards the Plaintiff notwithstanding the latter's threatening and abusive language. It will be recalled that the Plaintiff had asked Garda Kelly was he "fucking stupid" and had threatened to come after him as a man. It will also be recalled that Garda Kelly sought to facilitate the Plaintiff by arranging to have enquiries made into the latter's assertion that he had an arrangement to meet Councillor Sheehan at the event.
212. Similarly, the Plaintiff has been unable to point to any factor which might suggest that Superintendent McDonald had any animus towards him.
213. It might, in principle, be possible to infer malice in an extreme case where a decision to institute a criminal prosecution was self-evidently incorrect. The circumstances might be such that the only reasonable inference to be drawn is that the prosecutor must have been aware that there was no reasonable legal or factual basis for the criminal prosecution and that the decision to proceed is only explicable by malice. The facts of the present proceedings come nowhere close to such an extreme case. Here, there was a reasonable legal and factual basis for considering that the Plaintiff had committed, and would be convicted of, the two public order offences alleged.
214. Finally, it is necessary to consider the position of the Director of Public Prosecutions. The Plaintiff has elected to join the Director as a defendant to these proceedings.
215. The criminal prosecution in the present case had been instituted by the local Gardaí pursuant to section 8 of the Garda Síochána Act 2005. As is apparent from the evidence of Superintendent McDonald, the Director of Public Prosecutions had no actual role in the decision to prosecute the Plaintiff in relation to the alleged public order offences.
216. In the course of his cross-examination, the Plaintiff made the following, unfounded allegation against the Director (Day 1, page 104):
"What I am saying is that the DPP, as far as I am concerned, please understand me and it's my opinion, right, when the Guard puts a file into him, they will just prosecute anyway for to prosecute it."
218. The search warrant which authorised the seizure of electronic devices from the Plaintiff's home had been issued pursuant to section 10(1) of the Criminal Justice (Miscellaneous Provisions) Act 1997. The section, as substituted by section 6 of the Criminal Justice Act 2006, provides, in relevant part, as follows:
"If a judge of the District Court is satisfied by information on oath of a member not below the rank of sergeant that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence is to be found in any place, the judge may issue a warrant for the search of that place and any persons found at that place."
219. The legal threshold has been summarised as follows by the Court of Appeal in Director of Public Prosecutions v. O'Neill [2024] IECA 204 (at paragraph 19):
"A reasonable suspicion is self-explanatory and case citations cannot add to the analysis of a simple concept. What is not allowed is that arbitrary or capricious imaginings are enabled to infringe the right to privacy or to liberty. Both are involved in a search and both are constitutional rights; Article 40.5 and Article 40.4.1º of the Constitution. In so acting, there will be an invasion of the private space of suspects, whereby aspects of the nature of their lives will inevitably be revealed. That is unavoidable. What the law has set is the standard for such intrusion: reasonable suspicion. A search warrant is part of the investigation process and is not the proof of guilt. There must be a suspicion and that suspicion must be based on reason. That can be contrasted to hunch or intuition. There is nothing wrong with inference or mere suspicion leading gardaí in the direction of enquiries or investigations, but to breach the protection of the home, grounds for suspicion that would enable a reasonable person to also hold such a suspicion must be demonstrated. That is the principle, nothing more or less."
220. The Supreme Court, in Director of Public Prosecutions v. Quirke [2023] IESC 5, [2023] 1 ILRM 225 (at paragraph 98) held that just as the entry into and search of a physical location and seizure of physical items may be authorised by a search warrant, a digital search may also be authorised under the Act. Importantly, however, such a search and seizure is not authorised where a computer is potentially to be seized and yet no justification for such a seizure and examination as to what may be reasonably suspected is put before the judge authorising the search warrant.
221. It follows that where it is intended to seize and examine electronic devices, this must be expressly addressed in the sworn information. The position was put as follows at paragraph 90 of the judgment:
"While the authorities on the duty to specify the main points for seeking to search and for stating what is generally sought are legion, what is most fundamental is that the intervening judicial mind, having authority to authorise the search of "a physical location" cannot be exercised in a way that is meaningful in the protection of rights unless the intention to seize and search in the virtual space is part of the application to grant a search warrant. To be clear, what a meaningful intervention of an independent judicial process, or in the case of emergency where authorised then by an independent officer, is about is enabling not only the seizure of physical objects but their potential seizure should there be a reasonable belief that what is seized may yield evidence as to the commission of serious crime. Since a computer device is a portal from the physical world and into the digital space even beyond the storage capacities of that device and since such devices encapsulate the potential for searches outside the physical and into a significantly different intrusion, seizing a computer for the purpose of running searches in the digital space and why that may be reasonably believed to potentially yield information as to suspected crime requires that matter to be addressed before the judge in the sworn information."
222. The nature of the averments required in the sworn information was described as follows (at paragraph 100 of the judgment):
"[...] An information stating that it was proposed to search for computers and to analyse the digital content of same would have enabled the judge to agree or disagree that a search outside the physical location was justified. Simple averments as to why that might assist the investigation were all that were required of the gardaí."
223. The Supreme Court emphasised that where the Gardaí wish to seize a computer in a house in respect of which a valid warrant was issued, that "headline and necessarily blunt particularisation" of that interest must be brought to the District Court judge's attention on applying for legal authority to authorise such an invasion of privacy.
224. In its subsequent decision in Corcoran v. Commissioner of An Garda Síochána [2023] IESC 15, [2023] 2 ILRM 237, the Supreme Court set aside a search warrant in circumstances where the District Court judge ought to have been informed that the subject of the proposed search was a journalist but was not so informed.
225. Whereas it is best practice that the person whose premises are being searched be provided with a copy of the search warrant which they may retain, there does not appear to be any strict statutory requirement under the Criminal Justice (Miscellaneous Provisions) Act 1997 to do so. Rather, what the Act requires is that the warrant be produced if so requested. This court is satisfied that the Plaintiff was, indeed, shown a copy of the search warrant by Detective Sergeant Sheriff and that the officer explained in ordinary English what the warrant was for and what he was searching for (Day 6, pages 121/122).
226. A copy of the search warrant and the sworn information have since been provided to the Plaintiff in the context of these proceedings. Any supposed failure to furnish a copy to the Plaintiff at the time does not invalidate the legality of the search carried out.
227. Although the Plaintiff has pursued claims in respect of his arrest, and subsequent prosecution, arising from the events of 1 February 2016, his principal grievance is in relation to the execution of a search warrant against his home in May 2017. The Plaintiff returned frequently to this grievance throughout his own evidence, his cross-examination of the defence witnesses, and his legal submissions. However, the Plaintiff made no attempt to explain the legal basis upon which his grievance might translate into a cause of action. The search warrant was validly issued pursuant to the Criminal Justice (Miscellaneous Provisions) Act 1997 (as amended) and authorised the search of the home and the seizure of the electronic devices. This is not a case, therefore, of an invalid search warrant. Nor is it a case of an incorrect address on the face of the warrant. Rather, the complaint seems to be that the very act of making the application for the search warrant was itself tortious.
228. The Courts in England and Wales have recognised, as a tort, the malicious procurement of a search warrant (Reynolds v. Commissioner of Police of the Metropolis [1985] Q.B. 881). A claim of the type which the Plaintiff seeks to advance might be accommodated within such a tort assuming same were to be recognised by the Irish Courts. It would, however, be unsatisfactory to reach a definitive finding that such a tort does exist without having had the benefit of detailed legal submission on the point. Accordingly, it is proposed to adopt the following pragmatic approach: this judgment has been prepared on the working assumption that such a tort does exist and that its ingredients are broadly similar to those of the tort of malicious prosecution. This is done in circumstances where, as explained presently, the ingredients of the assumed tort are not made out in any event. Thus the outcome of the proceedings would be the same irrespective of whether a tort of the malicious procurement of a search warrant does exist under Irish Law or not. It is not strictly speaking necessary, therefore, to reach a concluded view. It remains open to the parties in another case to make an argument as to whether or not such a tort should be recognised.
229. A tort of the malicious procurement of a search warrant would seek to vindicate values similar to those advanced by the tort of malicious prosecution. It is intended to afford a remedy for an abuse of the criminal process, albeit directed to an earlier stage of the criminal process than malicious prosecution: a search warrant will usually be executed prior to the preferring of any criminal charges. It follows, therefore, that the ingredients of the two torts should be broadly similar. It should be explained, however, that the legal test may be more convoluted. Whereas the primary consideration will be whether there are reasonable grounds for suspecting that the execution of a search warrant might yield evidence in relation to an arrestable offence, it may also be necessary to consider whether the actions complained of constitute a criminal offence. This will not give rise to any difficulty in cases of a conventional offence, such as, say, assault. The analysis may be more difficult in cases—such as the present—where it is alleged that the conduct complained of, even if proved to have occurred, does not constitute a criminal offence. The controversy in the present case centres not so much on whether the seizure and examination of the electronic devices had been likely to establish whether same were used to make the impugned Facebook posts but turns, instead, on whether there were reasonable grounds for an honest belief that the publication of the Facebook posts is capable, as a matter of law, of constituting the criminal offence of harassment. To resolve this dispute, it is necessary first to consider the nature of the criminal offence of harassment. This is addressed under the next heading below.
231. Section 10(1) of the Non-Fatal Offences against the Person Act 1997, as enacted, had read as follows:
"Any person who, without lawful authority or reasonable excuse, by any means including by use of the telephone, harasses another by persistently following, watching, pestering, besetting or communicating with him or her, shall be guilty of an offence."
232. The concept of "harassment" bears a specific meaning for the purposes of the criminal offence. This is provided for under sub-section 10(2) of the Act as follows:
"For the purposes of this section a person harasses another where—
(a) he or she, by his or her acts intentionally or recklessly, seriously interferes with the other's peace and privacy or causes alarm, distress or harm to the other, and
(b) his or her acts are such that a reasonable person would realise that the acts would seriously interfere with the other's peace and privacy or cause alarm, distress or harm to the other."
233. The term "harm" is defined elsewhere under the Act as meaning harm to body or mind and includes pain and unconsciousness.
234. The meaning of the concept of "communicating with", in the context of the original, unamended version of section 10, has been discussed in detail by the Supreme Court in Director of Public Prosecutions v. Doherty [2020] IESC 45, [2023] 1 IR 294. The Supreme Court held that "communicating with" someone means that some information is made common as between the person communicating and the person communicated with. This does not necessarily require the subject of the harassment to be directly addressed.
235. On the facts of Doherty, the accused had sent emails derogatory of the victim to third parties. The victim became aware of the existence of, and the content of, the emails from the recipients of same. The accused had also placed leaflets on cars and pillars in the neighbourhood where the victim resided and the content of these too came to the attention of the victim. The Supreme Court held that these actions fitted into the category of a communication with the victim in circumstances where any rational person would realise that, although not directed at the victim, the leafletting in the neighbourhood of her home and the sending of emails were matters that were bound to come to her attention.
236. The implications of this interpretation for the publication of posts on social media was subsequently considered by the High Court in McGee v. Governor of Castlerea Prison [2023] IEHC 248. There, the High Court rejected an argument that there had to be direct communication between the accused person and the victim of the harassment. As on the facts of the present case, the accused person in McGee had published certain posts on a publicly accessible page on Facebook and the subject of the harassment was subsequently informed of the existence of those posts by family and friends. The High Court held as follows (at paragraph 56):
"It is incorrect, therefore, to say that conduct consisting of the publishing of posts on a publicly accessible page on a social media platform is not capable, as a matter of law, of amounting to communication for the purposes of the statutory offence of harassment merely because the posts were not sent directly to the victim. It was not necessary for the amended version of the legislation to have been available before a prosecution could have been taken in such circumstances. Of course, it will be a question of fact, in any given case, as to whether such conduct satisfies the elements of the offence. It will, for example, be necessary for the prosecution to establish that the communication actually came to the attention of the victim. It will also be necessary for the prosecution to establish either that the accused intended that the communication would come to the attention of the victim or that it was reasonably foreseeable that it would come to the victim's attention and that the accused was reckless in this regard."
237. The definition of "harassment" ensures that the offence is only committed where there has been a serious interference with the rights of the victim. This is expressly provided for in the first limb: "seriously interferes with the other's peace and privacy"; and is implicit in the second limb: the words "alarm", "distress" and "harm" all connote a serious interference with the victim's rights. The legislative provisions thus pursue a legitimate aim: the constitutional right to freedom of expression is not absolute and may legitimately be restricted in the interests of public order and morality and in the protection of the constitutional rights of others, including their right to a good name and their right to bodily integrity.
240. In support of his claim that there were no reasonable grounds for suspecting that the offence of harassment had been carried out, the Plaintiff advances arguments under two broad headings as follows. First, the Plaintiff argues that he is entitled, in the exercise of his right of freedom of expression, to criticise members of An Garda Síochána publicly. Second, the Plaintiff argues that in circumstances where Garda Kelly had told him on 1 February 2016 that he was not "on" Facebook, i.e. Garda Kelly did not have a Facebook user account, the Plaintiff did not think that Garda Kelly would see any Facebook posts referring to him.
241. For the reasons which follow, this court is not satisfied that either of these arguments negates the existence, as of May 2017, of reasonable grounds for suspecting the commission of the criminal offence of harassment. It should be reiterated that this does not entail any finding on the part of this court that the Plaintiff has committed a criminal offence: the Plaintiff is presumed to be innocent. Rather, the sole purpose of the exercise is to consider whether there might have been reasonable grounds for the investigating officers to form an honest belief that the criminal offence of harassment had been committed.
242. As discussed at paragraphs 230 to 238 above, the criminal offence of harassment is defined in broad terms, and is capable of capturing indirect communications of the type involved in the publication of posts on a social media platform such as Facebook. There are a number of aspects of the Plaintiff's alleged conduct which, potentially at least, took it beyond the legitimate exercise of freedom of expression into the realm of harassment. First, it was alleged that there had been a particular post which encouraged readers to march on the homes of members of An Garda Síochána. It would have been reasonable to assume that this would be distressing to Garda Kelly who had been singled out in a number of other posts. Secondly, the Facebook posts had to be seen in the context of a disturbing incident whereby an individual had telephoned a Garda Station in Kilkenny and had made an entirely unfounded allegation of domestic abuse against Garda Kelly. Garda Kelly had informed the investigating officers that he believed that the telephone call had been made by the Plaintiff. Garda Kelly remains of that belief (Day 8, page 38). Thirdly, much of the content of the Facebook posts was defamatory in the sense that it consisted of false allegations of perjury. Fourthly, the content of the Facebook posts was very vindictive and personal.
243. In the circumstances, it cannot be said that the Plaintiff's argument based on his right to freedom of expression is so obviously correct that it would necessarily have afforded a full defence to any criminal prosecution. Certainly, the argument does not negate the existence of reasonable grounds for suspecting the commission of the criminal offence of harassment.
244. It is necessary next to consider the second of the Plaintiff's two arguments, namely that Garda Kelly had not held a Facebook user account at the relevant time. This factor would not have been fatal to any potential prosecution in circumstances where the existence of the Facebook posts had been brought to Garda Kelly's attention by family and friends. As appears from the case law discussed above, the criminal offence is committed where it is established either that the accused intended that the communication would come to the attention of the victim or that it was reasonably foreseeable that it would come to the victim's attention and that the accused was reckless in this regard. It is apparent from the content of the Plaintiff's Facebook post of 1 February 2016 that he understood that his Facebook page was open to the public and that he intended his criticism of Garda Kelly and other Gardaí to be "open to everyone" (see paragraph 139 above). It is also apparent from his Facebook post of 17 February 2017 that the Plaintiff was aware that some 21,000 people had already viewed and/or commented on the video wherein the Plaintiff had falsely accused Garda Kelly of having told "desperate lies" to the Circuit Court. In the circumstances, there were reasonable grounds for suspecting that it was "reasonably foreseeable" that the existence of the Facebook posts would come to the attention of Garda Kelly.
245. In conclusion, the two investigating officers, Detective Inspector Hunt and Detective Sergeant Sheriff, have given evidence to the High Court to the effect that they believed that the ingredients of the criminal offence of harassment had been made out. The question for resolution in these proceedings is not whether this belief was correct but is a narrower one: whether the belief was honestly held and supported by reasonable grounds. This court is satisfied that the answer to this question is in the affirmative. It is apparent from their evidence to this court that the investigating officers examined the content of the Facebook posts, and the broader context in which they occurred, and carefully considered whether same came within the statutory definition of "harassment". The investigating officers concluded that it did, and, in particular, were satisfied that the course of conduct had interfered with Garda Kelly's peace and privacy and had caused him distress. The fact that there had not been any direct communication between the Plaintiff and Garda Kelly is not fatal having regard to the case law discussed above.
246. The investigating officers' belief that the Plaintiff was the person using the Facebook account, which was publishing the posts, had not only been reasonable, it has since been proved to be entirely correct. The Plaintiff has admitted in these proceedings that the user account is his. The Plaintiff, with the assistance of his adult son, arranged to return the account to a "public" setting to ensure that the parties could view all of the relevant posts.
247. It is a precondition to the issuance of a search warrant under the Criminal Justice (Miscellaneous Provisions) Act 1997 (as amended by CJA 2006) that there are "reasonable grounds" for suspecting that evidence of, or relating to, the commission of an arrestable offence is to be found at the place to be searched.
248. The Plaintiff has not seriously contested that there were reasonable grounds for suspecting that electronic devices would be found at his home. Similarly, the Plaintiff has not seriously contested that the seizure and examination of the electronic devices was likely to yield evidence relating to the identity of the person publishing the impugned Facebook posts. The Plaintiff has confirmed, in the course of these proceedings, that he published the posts.
249. The Plaintiff, instead, makes a different argument, namely that evidence relating to the identity of the person publishing the Facebook posts could have been obtained by alternative means. The Plaintiff argues that there were "less intrusive" methods, short of the issuance of a search warrant, which should have been attempted first. The Plaintiff suggests, in his written legal submissions, that one less intrusive way would have been to request META/Facebook to give details of the IP address from which the posts originated. In oral submission and in cross-examination, the Plaintiff had suggested that META/Facebook should have been contacted and asked to remove the offending posts. The Plaintiff also suggested, separately, that he should have been asked to provide the information or to delete his Facebook account or that an application should have been made for a civil restraining order.
250. It is not necessary, for the purpose of resolving the present proceedings, for this court to reach a definitive conclusion on whether there is always an obligation to employ less invasive means. This is because none of the alternatives suggested by the Plaintiff represents an effective alternative to the issuance of a search warrant. First, the Plaintiff has been unable to point to any legal mechanism whereby META/Facebook might have been required to disclose details which would assist in the identification of the account user. Indeed, when the prosecuting authorities did make a request for Mutual Legal Assistance in this case, same was refused. As to the removal of posts, Garda Kelly gave evidence that in his experience this is difficult to achieve.
251. Secondly, having regard to the content of the Facebook posts, the suggestion that the investigating officers should have made contact with the Plaintiff and requested him to delete his user account voluntarily is unlikely to have produced a positive result. It is apparent from the content of the post of 1 February 2016 that the Plaintiff resented any suggestion that he was not entitled to criticise Garda Kelly publicly. Indeed, after the execution of the search warrant, the Plaintiff published a Facebook post on 17 May 2017 asserting that "I also have the right to express my thoughts, and my feelings even though I may be wrong". The post concludes as follows: "Good to be back going on my rants, i am the best ranter on Facebook. and if the guards cant stick the heat well they should get out of the uniform". These posts are scarcely indicative of a mindset willing to withdraw the impugned posts.
252. Moreover, any approach to the Plaintiff ran the risk that evidence might be destroyed. As explained by Detective Inspector Hunt if, for example, you go and interview somebody casually about evidence, it is very likely that it will disappear (Day 6, page 65). It was also unlikely that the Plaintiff would have made admissions that he had published the offending posts: this is borne out by his subsequent refusal to answer most of the questions put to him at his interview following his arrest by appointment on 7 June 2018.
253. Thirdly, a civil restraining order of the type referred to by the Plaintiff in his cross-examination of Garda Kelly would not have been available at the relevant time. This type of order was only introduced under the Criminal Justice (Miscellaneous Provisions) Act 2023.
254. In conclusion, this court is satisfied that the investigating officers had reasonable grounds both for suspecting that the search and seizure of electronic devices would yield evidence relating to the commission of an offence of harassment, and for considering that a search warrant was required, i.e. that there were no less intrusive measures available for effectively obtaining the evidence.
255. This court is also satisfied that there was sufficient material put before the District Court judge to ensure effective judicial control and to allow the judge to make an informed decision to authorise the search for, and seizure of, electronic devices. In circumstances where the content of same was summarised in the sworn information, there was no requirement to furnish the District Court judge with copies of either Garda Kelly's statement of complaint or the Facebook posts.
256. Even if this court is mistaken in deciding that the level of detail provided in the sworn information in the present case is sufficient to meet the enhanced threshold identified by the Supreme Court judgment in Director of Public Prosecutions v. Quirke [2023] IESC 5, [2023] 1 ILRM 225, this would not result in a finding that the investigating officers lacked reasonable grounds for applying for a search warrant. The judgment in Quirke represented a significant development in the law relating to search warrants. As explained by the Supreme Court in Quirke (No. 2) [2023] IESC 20, [2023] 1 ILRM 445 (at paragraph 45), when assessing the conduct of law-enforcement officers it may be appropriate to have regard to what the general understanding of the law was at the material time:
"[...] Hence, since abiding by the law, even in the investigation of crime, is a paramount consideration, and since the doctrine of precedent and secure reliance on existing legislation are the central supports for legal certainty, where an existing statute is overturned or modified as to its application by judicial decision, as in Damache v DPP [2012] IESC 11 at [51], [2012] 2 IR 266 at 283, or where the common law develops so as to recognise privacy rights as requiring protection in a previously overlooked area, as in Quirke no 1, there can be no deliberate disregard of the legal order in law-enforcement officers standing on the firm ground of what the law then was."
257. This observation was made in the specific context of a determination as to whether evidence, which had been held to have been obtained in breach of a constitutional right, might nevertheless be admissible. The Supreme Court held as follows (at paragraph 53(6)):
"Such evidence can only be admitted when the breach can be excused. Such admission can occur either (1) where the breach has been occasioned in consequence of a subsequent legal developments, or (2) has occurred due to inadvertence. Reality demands the adoption of the rule in this form, through acknowledging that Garda officers or other persons conducting searches or obtaining evidence cannot be expected to anticipate the future decisions of the courts. Law enforcement officials are entitled to take the law as it stands as of the time of their actions. Factual errors and understandable human errors fall under the heading of the second class of case. [...]"
258. A similar approach applies, by analogy, to the assessment required in the context of a claim for malicious procurement of a search warrant. The legal test, in that context, focuses on whether there were reasonable grounds for applying for and obtaining a search warrant. If and insofar as it transpires—as the result of a significant development in the law several years later—that the level of detail provided in a sworn information would not now pass muster, this would not render the conduct of the investigating officers unreasonable provided they had complied with the legal procedure as it was then generally understood.
259. Proof of malice is an essential ingredient of the tort of the malicious procurement of a search warrant. It must be established that the party procuring the search warrant did so for an improper motive, that is, a motive other than the pursuit of justice. It is not necessary to demonstrate that the party acted out of personal animosity towards the individual adversely affected by the search warrant.
260. It might, in principle, be possible to infer malice in an extreme case. The circumstances might be such that the applicant must have been aware that there was no reasonable legal or factual basis for procuring a search warrant. In such an extreme case, the court might infer that the decision to apply for a search warrant is only explicable by malice. No such inference is justified on the facts of the present case. As explained earlier, the criminal offence of harassment is defined in broad terms and there were reasonable grounds for the investigating officers to suspect that the offence had been committed.
261. The Plaintiff has been unable to point to any factor which could justify a finding of malice. The investigation of the complaint of harassment had been deliberately assigned to two officers outside the New Ross area to ensure independence. Neither of the two investigating officers had any personal relationship with either the Plaintiff or Garda Kelly.
263. The Plaintiff, in his written legal submissions, has alleged that his constitutional right to personal liberty has been breached. This allegation is not well founded. For the reasons explained earlier, the Plaintiff was lawfully arrested pursuant to section 24 of the Criminal Justice (Public Order) Act 1994.
264. The Plaintiff has also alleged that the search of his home and the seizure of the electronic devices entailed a breach of Article 40.5 of the Constitution of Ireland. Again, this allegation is not well founded. The search and seizure were carried out pursuant to a search warrant which, as explained earlier, had been validly issued pursuant to the provisions of section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 (as amended). Consequently, the search and seizure were "in accordance with law".
265. The Plaintiff, in the present case, has challenged three different stages of the criminal process: his arrest for alleged public order offences; his subsequent criminal prosecution for those alleged offences; and the application for and issuance of a search warrant in relation to another alleged offence, namely an offence of harassment. The determination of the Plaintiff's claim entails, in essence, a consideration of the reasonableness of the actions of the investigating and prosecuting Gardaí. In each instance, the legal threshold applicable to the respective action requires, at its core, a consideration of whether the Gardaí involved had "reasonable or probable cause" or "reasonable grounds" for suspecting that a criminal offence had been committed. The Gardaí must have acted honestly and without malice (in the broad sense of that term).
266. For the reasons explained in this judgment, this court is satisfied that the Gardaí acted lawfully. See, in particular, paragraphs 188 to 194 (arrest); paragraphs 207 to 217 (criminal prosecution); and paragraphs 239 to 262 (search warrant).
267. Accordingly, the Plaintiff's claim must be dismissed in its entirety. The only outstanding issue is in relation to legal costs. The default position under section 169 of the Legal Services Regulation Act 2015 is that a party who has been "entirely successful" in proceedings is generally entitled to recover its (measured) legal costs as against the losing side. Here, the Defendants have been "entirely successful" in resisting the claim. Were the default position to apply in the present case, the Plaintiff would be liable for the Defendants' legal costs of what was a nine day hearing. If the Plaintiff wishes to contend for a different form of costs order than the default, he should file written legal submissions in the Central Office of the High Court and serve a copy of same on the Chief State Solicitor within two weeks of today's date (22 May 2025); the Defendants will have two weeks thereafter to reply (5 June 2025). If the Plaintiff does not file submissions within time, a costs order will be made against him in accordance with the default position.
Appearances
The Plaintiff appeared as a litigant in person
Jarlath Ryan SC and Mark Finan for the Defendants instructed by the Chief State Solicitor