Women’s cases against Commissioner of An Garda Síochána and others will proceed, Supreme Court judges rule
The cases of two women concerning claims of negligence with regards to the way in which alleged rapes perpetrated against them were investigated and prosecuted will proceed, the Supreme Court has ruled.
The two plaintiffs, L.M and Belinda Lockwood, have separately sought to pursue cases against the Commissioner of An Garda Síochána, the Minister for Justice, Equality and Law Reform, the Director of Public Prosecutions and the Attorney General in the case of L.M ( 1 I.L.R.M. 132), and Ireland, the Attorney General, and the Commissioner of An Garda Síochána in the case of Belinda Lockwood ( 1 I.R. 374).
The case of L.M involves allegations of negligence, breaches of her constitutional rights and her rights as protected by the European Convention on Human Rights. The allegations are based around the six year gap between L.M’s formal complaint of rape against her father in 1990, and his eventual prosecution in the Central Criminal Court. Following an order for retrial from the Court of Criminal Appeal, her father was able to seek judicial review on grounds of blameworthy prosecutorial delay, leading to the end of the prosecution. L.M claims she has been denied justice, and has reported feelings of post-traumatic stress.
In the case of Belinda Lockwood, the plaintiff’s alleged rapist was acquitted following trial due to a basic error on the part of the arresting garda. Due to a failure to follow correct procedure when arresting the alleged perpetrator, inculpatory statements were excluded from evidence. The outcome, the plaintiff claims, was that she did not have the benefit of that inculpatory evidence, and has suffered distress, loss and damages as a result.
The High Court had originally dismissed both cases either in whole or in that part relating to a claim of negligence, following a determination that the public authorities concerned did not owe the plaintiffs a private law duty of care.
The Supreme Court judges noted that there were considerable similarities between the two cases, and that despite significant differences within the facts of the cases, they were therefore to be heard together. It was noted that both cases could raise substantial issues of public policy, due to the contentions within both cases that “but for the alleged negligence the accused person would or could have been found guilty”. However, such issues were not critical for the current decision.
Delivering the opinion of the court, O’Donnell J (pictured) outlined the development of the law of negligence. Beginning with an acknowledgement of the landmark case of Donoghue v. Stevenson A.C. 56, he noted “the expansion of the conceptual field of the tort of negligence”.
Particular attention was given to cases concerning the private law duty of care of public authorities, and in the specific context of crime prevention, prosecution and investigation. O’Donnell J considered the persuasive UK authority Hill v. The Chief Constable for West Yorkshire A.C. 53, which ‘held that the police did not owe a general duty of care to individual members of the public’.
However, O’Donnell J noted that subsequent cases have sought to explore whether there might be exceptions to this rule, most recently in the case of Michael & Others (FC) v. The Chief Constable of South Wales Police and Another 2 W.L.R. 343, which although reaffirming the rule, featured a dissenting judgment which would have permitted a negligence claim to proceed against the police service.
Furthermore, he acknowledged that the impact of the European Convention on Human Rights on domestic law has meant that ‘domestic tort jurisprudence in common law countries is capable of being tested against the Convention.’ Indeed, the case of O’Keeffe v. Ireland (2014) 59 E.H.R.R. 15 found that Ireland had violated Article 3 by failing to provide an effective remedy in respect of the plaintiff’s complaints of sexual abuse at the hands of a teacher.
Thus, O’Donnell J found that the legal issues at the heart of the current cases have been subject to considerable legal debate “at the highest level”. This debate, when combined with the potential issues of public policy surrounding the cases, was considered illustrative of “the complexity and importance of these cases
Having made this point, the judge considered the purpose of trials of a preliminary issue. He stated that courts should be entitled to consider whether it is appropriate to make a determination on preliminary issues, or whether the case should proceed to trial to have “issues of law determined in the concrete and precise circumstances of an individual case.”
O’Donnell J found a number of persuasive reasons why the current cases should not be determined at the preliminary stage. In particular, he noted that it was unlikely to save time or costs, that much was already known about the cases, and that if Convention and constitutional claims remained live, a fact which was far from clear, then little could be gained from a ‘determination of a preliminary issue as to the existence of a negligence claim’, as similar ground would have to be covered in the future.
Furthermore, he noted the significant lack of clarity in both cases, arguing that “the pleadings in these cases lack the sort of precision that would allow legal issues of this magnitude to be determined.”
He concluded: “The combined effect of the importance and complexity of the legal issue raised in these cases, the procedural inadequacies and confusions, the lack of factual and legal precision even after a number of years, the unlikelihood that even the bluntest answer will resolve all issues in such cases, and the possibility, at least, that the Court might not be able to offer more than a highly qualified, contingent or abstract answer, all lead me to the conclusion that the determination of the preliminary issue in these cases is an inadequate and inappropriate vehicle for the determination of the important issues raised.
“While the point raised is an important and absorbing one from the point of legal theory, it is also of particular importance at a human level, not least to the individual plaintiffs whose experience of the legal system in its broadest sense, cannot be said to have been positive. It is important that these cases are properly and fairly determined, which means in my view that these plaintiffs should be allowed bring their cases to trial.”