DF v Commissioner of An Garda Siochána: autistic man has a right to anonymity and trial by jury for constitutional tort

imagesAlthough there is no right to trial by jury for constitutional torts, such a right can arise where a claim is in addition to or as an alternative to an action which falls under the exemption in s 1(3) of the Courts Act 1988, which preserves the right to civil jury trial for claims of false imprisonment or intentional trespass to the person.

Although Article 34.1 of the Constitution requires that justice be administered in open court and that the media be allowed to circulate accurate reports of litigation, s 27 of the Civil Law (Miscellaneous Proceedings) Act 2008 provides a limited statutory exception, which is less than in camera, which restricts reporting of details likely to identify any party to proceedings who has a medical condition, where reporting would likely cause undue stress. And that statutory right is not subject to the discretion provided for by the Rules of the Superior Courts.

Background

DF suffers from a severe form of autism. He “needs routine, loves watching horses, guards a particular patch of ground as a task appointed by his mind and does not need people of malice being attracted to him or intruding on that space” [27].  Gardai received a complaint that two young women were chased by someone with a stick. When they arrived on the scene, they found DF there waving a stick. The State claims that the gardai realised that DF suffered from a disability, but they decided that s 12 0f the Mental Health Act 2001 applied and took him into custody in the opinion that he was a person suffering from a mental disorder such that there was a serious likelihood of the plaintiff causing immediate and serious harm to himself or to other persons. Through his next friend, DF claims that his arrest was unlawful and issued proceedings claiming aggravated, punitive and/or exemplary damages. Particulars of the claim include that gardai breached his constitutional right to liberty, bodily integrity and privacy and breached his rights under the ECHR. DF is also seeking anonymity in reporting of the trial.

High Court

In the High Court (here), Hogan J held that the legal issues should be decided by the trial judge and should it arise, the jury should assess damages. In a separate judgment (here), rejecting DF’s application for anonymity, Hogan J stated “I cannot lightly ignore the Constitution’s commitments to open justice in Article 34.1, equality of treatment in Article 40.1 and the effective protection of good name in Article 40.3.2” [38]. DF appealed both decisions to the Supreme Court.

Law

Trial by jury: s 1(3) of the Courts Act 1988 provides that the removal of the entitlement to civil jury trial does not apply to:

(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,

(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) …

(c) a question of fact or an issue arising in the action referred to in paragraph (a) or (b) …

Anonymity: s 27 of the Civil Law (Miscellaneous Proceedings) Act 2008 provides:

(1) Where in any civil proceedings (including such proceedings on appeal) a relevant person has a medical condition, an application may be made to the court in which the proceedings have been brought by any party to the proceedings for an order under this section prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the relevant person as a person having that condition.

(2) An application for an order under this section may be made at any stage of the proceedings.

(3) The court shall grant an order under this section only if it is satisfied that-

(a) the relevant person concerned has a medical condition,

(b) his or her identification as a person with that condition would be likely to cause undue stress to him or her, and

(c) the order would not be prejudicial to the interests of justice.

Supreme Court

Charleton J (here), writing for a unanimous five judge panel, held that “the core issue was whether there was a lawful arrest and a lawful detention” [5]. And he determined that Hogan J was influenced by the discretion granted in the Rules of the Superior Courts [7]: Order 36 rule 7 allows a trial judge to order a trial by a judge alone notwithstanding a statutory right to trial by jury. However, the Committee is not a legislative body and the Rules of the Superior Courts cannot override the 1988 Act, which provides a right to trial by jury for false imprisonment and intentional trespass [21]. Without accepting that the wrongs DF claims exist in law (tort of breach of constitutional right to liberty, bodily integrity and privacy) [4], they stem from a claim of false imprisonment and intentional trespass and, therefore, are covered by s 1(3) of the 1988 Act and carry an entitlement to jury trial [21].

Charleton J also held that Hogan J incorrectly determined that Article 34.1 of the Constitution required a restrictive interpretation to s 27 0f the 2008 Act. Article 34.1 requires that justice be administered in public except “in such special and limited cases as may be prescribed by law”. And s 27 prescribes a limited exception as a “necessary concession” [28] in “a society where, globally, people can be harried and undermined by anonymous internet malice” [27].

In summary, Charleton J stated at [29]:

… On arriving at the scene where the stick waving and chasing had, as had been reported to them, apparently taken place, they apparently reached a conclusion that they should arrest Desmond because of his mental condition and it being a danger to himself and others. The application of that power of arrest is what this case is about. The validity of those actions is to be judged according to the reports to the gardaí and their own observations. There is no danger of prejudice to justice by Desmond being named in reports of proceedings in that way instead of under his own name and address.

Charleton J allowed both appeals. Denham CJ and Murray, Hardiman, and O’Donnell Donal JJ concurred.

 

 

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