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Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Walshe -v- Fennessy & Ors & Bedford -v- Fennessy & Ors  IESC 51 (28 July 2005)
Cite as:  3 IR 51,  IESC 51
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Judgment Title: Walshe -v- Fennessy & Ors & Bedford -v- Fennessy & Ors
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THE SUPREME COURT
Neutral Citation:  IESC 51
Supreme Court Record Number: 221/04 & 222/04
High Court Record Number: 1994 No. 192P & 1991 No. 15349P
Date of Delivery: 28/07/2005
Court: Supreme Court
Composition of Court: Murray C.J., Geoghegan J., Kearns J.
Judgment by: Murray C.J.
Status of Judgment: Approved
Other (see notes)
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Both Anselm Walshe and Kay Bedford were arrested in Limerick on the evening of 27th September, 1991, under s.30 of the Offences against the State Act, 1939. Anselm Walshe was at the time a plain clothes garda officer stationed in Limerick who had 33 years service in the Garda Síochána. Kay Bedford was a person who was on friendly terms with Garda Walshe, but was not herself a member of the Garda Síochána. Following the arrest, which in the case of Garda Walshe took place at Henry Street Garda Station, and in the case of Ms. Bedford at her home, both were brought to Dublin where they were detained in custody at the Bridewell Garda Station and questioned until they were released on the morning of the 29th September, 1991, after approximately 40 hours detention.
The arrests took place as part of an investigation into a matter of major concern to the garda authorities at the time, namely, the infiltration of the ranks of the gardaí in Limerick by the I.R.A. This had resulted in the leaking of information on garda activities in Limerick from within garda ranks to the I.R.A. Both Garda Walshe and Ms. Bedford were arrested on suspicion of membership of the I.R.A. After questioning in the Bridewell Garda Station in Dublin however both were released without charge. Both the State appellants and Detective Inspector Fennessy, who was the officer appointed by the Garda Commissioner to conduct the inquiry into the possible existence of moles or I.R.A. members or sympathisers within the Garda Síochána in Limerick, now accept that neither Garda Walshe or Ms. Bedford were members of the I.R.A. However, it is contended on behalf of the State appellants that the arrests and subsequent detention of both Garda Walshe and Ms. Bedford were not unlawful as the arresting officer in each case had a bona fide and reasonable suspicion at the time of arrest that each was a member of an illegal organisation, namely the I.R.A.
The legality of the arrests of Garda Walshe and Ms. Bedford was the subject of a ruling in the course of the trial by the trial judge on 20th May, 2003. He ruled that the arrests were unlawful on the grounds that the members of An Garda Síochána who arrested Garda Walshe and Ms. Bedford, being Detective Inspector Fennessy and Sergeant O’Shea respectively, did not have the requisite suspicion for the purposes of s.30 of the 1939 Act. Having regard to the fact that the trial judge so ruled, the only issue to be then considered by the jury in both cases was the quantum of damages and the trial judge directed the jury on that basis. There is no complaint of any sort made about the charge given to the jury by the learned trial judge. During the course of the proceedings and prior to trial, Detective Inspector Fennessy sought his own legal representation separate from the State appellants and engaged his own solicitors and counsel for the trial. While the State appellants have at all times accepted that Detective Inspector Fennessy was entitled to an indemnity for the award of damages and costs made in favour of the plaintiffs, the State appellants did not accept that they had any liability to discharge Detective Inspector Fennessy’s own costs. This issue was the subject of a separate hearing before the trial judge on 12th November, 2003, at which neither plaintiff was involved or represented. Following submissions, the trial judge ordered that the State appellants pay Detective Inspector Fennessy’s costs in both cases. In notices of appeal date 21st May, 2004, the State appellants have appealed the ruling of the trial judge which found the arrests of Garda Walshe and Ms. Bedford to be unlawful, the awards of general damages of and €175,000 and €100,000 in favour of Garda Walshe and Ms. Bedford respectively and the order of the trial judge granting Detective Inspector Fennessy his costs against the State appellants. It is submitted that the trial judge erred in ruling as he did in relation to the arrests and ought to have ruled that the arrests were lawful. It is further submitted that the awards were so excessive and disproportionate having regard to all the circumstances that no jury could reasonably have awarded such damages. It is further submitted that the trial judge erred in awarding Detective Inspector Fennessy his costs against the State appellants and ought to have required Detective Inspector Fennessy to bear his own costs in circumstances where the State appellants were prepared to continue providing representation for Detective Inspector Fennessy at the trial.
Anselm (otherwise ‘Joe’) Walshe was born in 1942 and joined the Garda Síochána in 1965. After various postings, he ended up in Limerick in 1974 and was transferred to the Plain Clothes Division of the Garda Síochána in Limerick in 1976. He was involved in the investigation of serious crime and in due course became a full-time scene of crimes examiner in Limerick. He was also very active in the GAA.
In May 1991, a number of months before his arrest, he was involved in an incident when he fell asleep in a car outside a pub in Newtown Perry. This pub was owned by a man named Conway who was believed to have I.R.A sympathies. Some people drove him home on the night in question then took his car and crashed it. It appears that as a result of this incident, a decision was made to revert Garda Walshe to uniform duties, but no action had been taken on foot of this decision at the time of his arrest in September, 1991.
Because it also arose in the course of his subsequent detention, it is perhaps appropriate also to record that he had a cousin, Sarah Duggan, who was involved in one of the republican movements and whose boyfriend was believed to be a member of the I.R.A. Garda Walshe’s ex-directory telephone number was found in Sarah Duggan’s flat in the course of inquiries undertaken to ascertain the source of the leaks within the Limerick Gardaí ranks. However, it is common case that Garda Walshe had reported this association some considerable time prior to his arrest to his immediate superior, Detective Inspector Gerry O’Sullivan. Garda Walshe gave evidence that he tried to persuade Sarah Duggan not to become involved in any republican activity. His friendship with Kay Bedford arose through another friendship and also because Ms. Bedford lived beside the garda station and had asked him for help with passports and the completion of forms of that nature. They also travelled up and down from Limerick to Nenagh together from time to time. Nenagh is Garda Walshe’s home place and also a place that Kay Bedford used regularly visit .
On the 27th September, 1991, Garda Walshe received word that Superintendent Higgins, who was in charge of the station in Henry Street, wished to see him. However, not long after he arrived he was, much to his surprise, arrested by Detective Inspector Fennessy who informed him that he was arresting him under s.30 of the Offences against the State Act, 1939, on suspicion of membership of an illegal organisation. Garda Walshe stated in evidence that he was shocked and horrified by this turn of events, not only because he had nothing to do with the I.R.A. but because he had an aversion to that organisation and had constantly warned his own sons not to get involved with organisations of that nature. He was led out of the station in full view of his colleagues and felt ashamed and degraded. He was driven to Dublin and noted there were cameras and reporters outside the Bridewell garda station when he arrived. He was given a copy of his rights in the early stages and put in a cell.
In subsequent interviews, he was repeatedly asked for his own views as to why he had been arrested. He was asked did he know a Mr. Michael Edwards, an individual who was also of interest to his questioners. He was also asked about Sarah Duggan and repeated the explanation which he had previously given. He also indicated to his questioners that he knew a family called Gavin who lived in Patrickswell in a known republican location. He wondered if the fact that his car might have been seen there, or the fact he was visiting the Gavins, might have been the reason for his arrest. He repeatedly stated he was not a member of the I.R.A. and had nothing to hide.
On being returned to his cell he was unable to sleep that night and described interviews which followed the next day. The plaintiff accepted, very fairly, that the persons interviewing him had been courteous and professional and he had not been mistreated in any way. He was eventually released without charge at about 10:30am on the morning of 29 September, 1991, and driven back to Limerick.
He further gave evidence that he was suspended and not restored to the force until the 17th October, 1991. He was told to apply for his pay during the time when he was suspended. This was refunded to him. Thereafter he found life very difficult in Limerick because he felt people were pointing him out as an associate of criminals and other undesirables. He was subsequently transferred to Cloughjordan and was stationed there as a uniformed garda. It took him about 12 months to fully recover in a personal and professional way from what had happened. He felt stigmatised by what had occurred and had brought the proceedings to vindicate his name.
Detective Inspector Fennessy was the officer sent down from Dublin to Limerick in March, 1991, who was charged with responsibility for discovering whether or not there was a member, or a number of members, of the I.R.A. within the Garda Síochána in Limerick. It is clear from the evidence that the trigger for making the arrest of Garda Walshe was a direction to that effect given to Detective Inspector Fennessy by Chief Superintendent Byrne, later Commissioner Byrne, at the end of a meeting attended by Detective Inspector Fennessy in Garda Headquarters in Dublin. This was in the context of a plan to arrest on the same day another garda, Garda Kelly, also based in Limerick, who was undoubtedly guilty of passing on information to the I.R.A. and was effectively ‘caught in the act’ on the day in question.
Insofar as the arrest of Garda Walshe was concerned, Detective Inspector Fennessy in the course of his evidence alluded to a number of matters within his knowledge at the time. Firstly, he referred to a search carried out by members of the Garda Síochána of premises occupied by Sarah Duggan, a cousin of Garda Walshe, and the discovery there of Garda Walshe’s telephone number which was a telephone number not normally in the public domain. He also gave evidence of a second matter concerning Garda Walshe’s presence in a public house known as Newtown Perry Public House where the owner was suspected of having an involvement with an unlawful organisation. Garda Walshe’s car had been stolen in strange circumstances after he had been in these premises one night. Thirdly, and more importantly, Detective Inspector Fennessy told the court that he had seen information about Garda Walshe which was contained in a confidential document known as a C77. This document was not prepared by Detective Inspector Fennessy, but by some other member of the Garda Síochána and was forwarded to Garda Headquarters in Dublin prior to the direction by Chief Superintendent Byrne to effect to arrest of the plaintiff. This highly confidential secret intelligence document was the subject of a public interest privilege claim, and while the plaintiff’s legal advisers sought discovery of this document at an earlier stage of the proceedings, the claim of privilege was upheld by Costello J. in the High Court in rulings delivered in April and May, 1994, following his own inspection of that and other documents. Detective Inspector Fennessy told the court that he had a suspicion about Garda Walshe “based on the C77 which was sent to Garda Headquarters” and further told the court that because “very sensitive and secret material and moles in the Garda Síochána were in Limerick, my authorities did see a very, very serious situation and they took the decision.”
In the course of the hearing before this court, Gerard Hogan, senior counsel for the State appellants, clarified the appellants’ position in various respects. Firstly, he stated that he was not relying on the material concerning Sarah Duggan and the Newtown Perry pub to justify the arresting officer’s ‘reasonable suspicion’. Nor was the Patrickswell relationship being relied upon. What was being relied upon was the fact that the information contained in the C77 was known to Detective Inspector Fennessy and was sufficient in itself to ground reasonable suspicion, particularly in circumstances where it had been prepared by some other officer. In addition, the arresting officer was entitled to have regard to the fact that his superiors in Dublin, to whom the C77 had been sent, gave a direction to him to effect the arrest in question. However, Mr. Hogan made the concession that the direction to arrest if and when taken alone would not, in the absence of the information contained in the C77 document, have provided a sufficient basis for the formation of a reasonable suspicion.
Ruling of the Trial Judge as to legality of arrests
Having conducted a careful review of the evidence, the learned trial judge dealt with this issue in the following manner (Day 8 at pp 18-24):-
In evidence, Detective Inspector Fennessy dealt with the first ground, that is the question of Sarah Duggan, and the discovery of his telephone number, Mr. Walshe’s telephone number at the premises. In evidence Mr. Fennessy expressed himself satisfied with the explanation which he had been given by Mr. Walshe in relation to that discovery. He indicated that Mr. Walshe had been quite straight with him and had reported the fact that his cousin had been associating with members of an unlawful organisation and marching in circumstances which gave rise to suspicion. Detective Inspector Fennessy described himself as quite satisfied with the explanation, or indicated he was, and certainly his demeanour made it perfectly clear that he was satisfied in those circumstances. In relation to the question of the incident at Newtown Perry - the public house in Newtown Perry - which has been described in some detail, I am not going to go into it, and in relation to the information which was discovered by Detective Inspector Fennessy in the C77.
It is of considerable importance to bear in mind that Detective Inspector Fennessy was the officer in charge of the investigation in Limerick into the presence of a suspected mole within the Garda Síochána. If he had a suspicion in relation to Mr. Walshe, he certainly did not see fit to require any investigation into Mr. Walshe in any respect, or in any manner.
One thing is clear, and was absolutely crystal clear from the evidence adduced by Detective Inspector Fennessy, and it was something which he constantly repeated. Detective Inspector Fennessy did not arrest Mr. Walshe because he suspected that Mr. Walshe was a member of the I.R.A. He did so because he was instructed to arrest Mr. Walshe by I think then Superintendent, now Commissioner, Patrick Byrne. Detective Inspector Fennessy was at pains to repeat that constantly. And it has to be borne in mind that Detective Inspector Fennessy was the person charged with the responsibility for discovering whether or not there was a member, or a number of members of the I.R.A. within the Garda Síochána in Limerick. Nonetheless, having in fact interviewed Mr. Walshe on one occasion at least, Detective Inspector Fennessy did not feel that it was necessary to investigate Mr. Walshe in any respect.
Having listened carefully to the evidence, I am satisfied that while Detective Inspector Fennessy may have harboured some doubts about Mr. Walshe in the weeks and days leading up to the arrest of Mr. Walshe, and he may have been to some extent on inquiry, he did not harbour a real bona fide suspicion that Mr. Walshe was a member of the I.R.A. on the day when Mr. Walshe was arrested. That was not the reason why he arrested Mr. Walshe. He arrested Mr. Walshe because he was directed by then Chief Superintendent Byrne to do so, and because he was called back from a meeting which he was attending and directed by Chief Superintendent Byrne to arrest Mr. Walshe. And he expressed himself as surprised to be asked to do so. But he indicated that he obeyed what was an order and effected the arrest. It was the state of mind of Superintendent Byrne, or then Chief Superintendent Patrick Byrne, now Commissioner Byrne which gave rise to the arrest the arrest of Mr. Walshe, not that of Detective Inspector Fennessy.
When Detective Inspector Fennessy attended the meeting in Dublin with then Chief Superintendent Byrne, he did not harbour a suspicion which warranted the arrest of Mr. Walshe. And he was the officer in charge of the investigation, which was seeking to discover whether or not there was any member of the Garda Síochána in Limerick who was a member of the I.R.A.. When he attended that meeting he did not harbour a real doubt or a real suspicion of that kind. He received no additional information from Chief Superintendent Byrne which would have altered his state of mind in any way. And he made that perfectly clear. He said he was not investigating Mr. Walshe and he remained clear that he had no intention of investigating Mr. Walshe. How in those circumstances can I find that Detective Inspector Fennessy had a real bona fide suspicion that Mr. Walshe was a member of the I.R.A. on that occasion? An arresting officer is entitled to arrest under s.30 of the Offences against the State Act if he suspects a person has committed an offence, particularly in this instance an offence identified in the Schedule to the Act, but the suspicion which he harbours must be a real suspicion, not a whimsical suspicion. The rights of citizens to their liberty are too important to permit arrests on grounds other than real and justified suspicion.”
I am satisfied according to the balance of probabilities that the arrest of Mr. Walshe by Detective Inspector Fennessy was unconnected with any doubts which he may have had about Mr. Walshe and unconnected with any suspicion, if suspicion it can be called, that he may have entertained, but I do not regard it as a real suspicion in the sense which is contemplated by the Act.
As I have indicated, the onus rests upon the defendants to prove that the arrest of Mr. Walshe on the 27th September, 1991, was valid. I am not satisfied on the evidence and on the balance of probabilities that the defendants have discharged that onus”.
The object of the Offences against the State Act, 1939, is expressed in its long title to be:-
“(a) The usurpation of the functions of Government;
(b) The obstruction of Government (including attempts by force of arms or other violent means or any other forms of intimidation to prevent the exercise by the President, the members of the Oireachtas, the Judiciary, or the Executive of the State, or the State employees of any of their powers or functions);
(c) Illegal drilling and other military exercise;
(d) The formation or maintenance of any secret society in the army or the police force; (emphasis added)
(e) The administering of unlawful oaths”
It goes without saying that the undermining of a nation’s police force as a result of the infiltration of its ranks or members by unlawful armed organisations is a matter which goes to the very essence of State security.
Section 30(1) of the 1939 Act provides:-
I now turn to briefly consider the role in all of this of a direction to arrest given by a superior officer. At the outset, having regard to the concession made by counsel for the appellants that a “direction alone” is insufficient, it is only necessary in this case to determine whether or not such a direction, taken in conjunction with the other material or information which was within the knowledge of the arresting officer, may be seen as sufficient.
I would however see the concession made on behalf of the State appellants about a “direction alone” as somewhat surprising having regard both to the particular facts of this case and having regard also to the decision of the Court of Criminal Appeal in The People (DPP) v. McCaffrey  I.L.R.M. 687.
In that case the arresting officer stated in direct evidence that he arrested the applicant under s.30 of the Offences against the State Act, 1939, on suspicion of having committed a scheduled offence, namely, possession of a firearm with intent to endanger life. On cross-examination he agreed he had no suspicion of his own with regard to the applicant. This statement was elaborated on by him in re-examination when he said in effect that the source of his suspicion was a direction to him from Chief Superintendent McNally, the garda officer in charge of the investigations, to arrest the applicant on suspicion of having committed a crime which had involved firearms and ammunition.
In delivering the judgment of the court, Henchy J. stated (at 688):-
The construction put in s.30 in support of the application involves the requirement that no member of the Garda Síochána may make an arrest under s.30 unless he has personally acquired, by investigation, sufficient information relative to the arrested person to warrant his suspecting that person of an offence to which s.30 applies. It is a corollary of this reasoning that if a number of gardaí involved in the investigation of crime or circumstances of the nature envisaged in s.30 should individually form no suspicions on information personally obtained but collectively pass on all their information to a superior officer who, as a result, forms a suspicion concerning a particular individual, that that superior officer alone would be authorised by s.30 to make the arrest. This conclusion may be qualified to the extent, however, that if such a superior officer designated or instructed any other member of the Garda Síochána to make an arrest under s.30, the Superintendent would have to furnish that member with sufficient of the collected information, whether confidential or otherwise, to ensure that the member would himself then form the suspicion corresponding to that already entertained by his instruction superior officer. Such an interpretation of s.30 would be inconsistent with the declared objective of the Offences against the State Act, 1939, namely, ‘to make provision in relation to actions and conduct calculated to undermine public order and the authority of the State’. This interpretation of the wording of s.30 necessarily follows from the submission that the suspicion upon which an arrest under s.30 is authorised must be personal only to the member of the Garda Síochána by whom the arrest is made. As we find this submission unsound in law and unacceptable, the grounds of appeal which are dependant upon it must fail.”
The role and significance of a direction to arrest given to a subordinate by a superior officer was considered by the House of Lords in McKee v. Chief Constable for Northern Ireland  1 W.L.R.1. Here a police officer was held entitled to have an honest suspicion merely from the fact of instructions given to him by his superior, since an arresting officer was not bound and indeed might not even be entitled to question those instructions or to ask on what information they were founded. Accordingly since the arresting officer had honestly suspected the respondent of being a terrorist, the arrest was lawful and the Chief Constable’s appeal was therefore allowed. In the course of his speech Lord Roskill stated (at p. 1361):-
In upholding the lawfulness of the arrest, Lord Hope in the course of his speech stated (at p. 296):-
This means that the point does not depend on whether the arresting officer himself thought at that time that they were reasonable. The question is whether a reasonable man would be of that opinion, having regard to the information which was in the mind of the arresting officer. It is the arresting officers own account of the information which he had which matters, not what was observed by or known to anyone else. The information acted on by the arresting officer need not be based on his own observations, as he is entitled to form a suspicion based on what he has been told. His reasonable suspicion may be based on information which has been given to him anonymously or it may be based on information, perhaps in the course of an emergency, which turns out later to be wrong. As it is the information which is in his mind alone which is relevant however, it is not necessary to go on to prove what is known to his informant or that any facts on which he based his suspicion were in fact true. The question whether it provided reasonable grounds for the suspicion depends on the source of his information and its context, seen in the light of the whole surrounding circumstances.”
In this case the evidence about the matters which were disclosed at the briefing session to the arresting officer was indeed scantly. But …the trial judge was entitled to weigh up that evidence in the light of the surrounding circumstances and, having regard to the source of that information, to draw inferences as to what a reasonable man, in the position of the independent observer, would make of it. I do not think that either the trial judge or the Court of Appeal misdirected themselves as to the test to be applied. I would dismiss this appeal”
Without in any way trying to fix or lay down a template of what is appropriate in all cases, these authorities clearly demonstrate that the relevant suspicion is that of the arresting officer alone. It is not the arresting officer’s subjective belief which is the critical or determining factor. It is a suspicion which, to be found ‘not unreasonable’, must find some objective justification from the surrounding circumstances and the information available to the arresting officer. It is a suspicion which in my view may be informed by a direction to arrest given by a superior officer, particularly in the circumstances of this case where the direction must be seen against the background of all the other background circumstances found to have been proven at the time when the direction to arrest was given. Even if a direction alone is never to be taken as sufficient, and I don’t wish to be taken as so holding or deciding, the authorities establish that something quite small in addition will suffice to constitute the material from which a bona fide and reasonable suspicion may be formed. It may be a briefing session or document. It may be hearsay material coming by way of confidential information. It may be no more than a short verbal account given by a superior officer to the officer who will make the arrest. It may also derive and be inferred from the surrounding circumstances as this court recently emphasised in D.P.P. v Tyndall (unreported, 3rd May, 2005 per Denham J).
This is not a case where there is any suggestion of mala fides on the part of the appellants. Nor is it a case where it is alleged or suggested that Garda Walshe was ill-treated whilst in custody, although the circumstances of his arrest and detention must have been the source of great hurt and distress to him.
What is plain beyond doubt, however, is that the arresting officer had, prior to the direction to make the arrest, and the arrest itself, the information contained in the form C77, in which both plaintiffs were named. This document has been described as a highly sensitive and confidential document prepared by some officer other than Detective Inspector Fennessy in the course of the very inquiry which led to a number of arrests, including it would appear some other garda officer who was subsequently tried and convicted in the Special Criminal Court. The information contained in the C77 was actually seen by Detective Inspector Fennessy and the document itself was forwarded by the same officer to his superiors in Dublin prior to the meeting which culminated in the instruction from his superior officer to effect the arrest of the plaintiff.
Unfortunately the ruling of the trial judge did not fully address the importance or significance to the C77 or its contents, some details of which were nonetheless given in evidence. Insofar as the role of the C77 at the trial was concerned, the learned trial judge maintained the ruling of privilege in respect of the document which had been previously made and upheld by Costello J. He did not, however, read the document himself, so that it must inevitably follow that the court’s ruling on reasonable suspicion was based on less information than was available to Detective Inspector Fennessy himself, which strikes me as a notable feature of this case. In fairness to the trial judge, counsel for the State appellants had not made clear until a very late stage in the case his intention to seek a ruling that the court, and not the jury, should adjudicate on the lawfulness of the arrest. This had the effect that the court was not called upon to focus on the most critical grounds for the arresting officer’s suspicions, even if the salient points of the C77 were referred to by Detective Inspector Fennessy in the course of his evidence.
I will therefore at this point turn to an evaluation of the importance of the C77 in the context of the requirement to consider if there were adequate grounds for the formation of a reasonable suspicion. On Day 3 of the trial, Detective Inspector Fennessy gave evidence that he had seen the C77 which identified Garda Walshe as a person who was associating with and passing information to one Michael Edwards, a known member of the I.R.A. (p.117 and 121). On Day 4, Detective Inspector Fennessy again confirmed that he had seen the secret document in which it was stated that Garda Walshe was associating with a named member of the I.R.A. (p.5). In cross-examination by counsel for the State appellants, Detective Inspector Fennessy further confirmed that he had a suspicion that Garda Walshe was a member of an unlawful organisation, namely, the I.R.A., “based on the C77 which was sent to Garda Headquarters” (p.32). Later, under cross-examination by counsel for the plaintiff, Detective Inspector Fennessy stated that the intelligence itself on the secret form, whether it was checked out or not, would be very suspicious and would give reason to have an opinion that something was “very wrong” (p.47). Detective Inspector Fennessy then stated (at p.48):-
I am quite satisfied that the contents of the C77document such as were detailed in evidence are, when taken in conjunction with the direction, cumulatively sufficient to satisfy the requirements laid down in The People (DPP) v. Quilligan  I.R. 495. It is not necessary to consider whether, taken individually and separately, either alone would suffice. The C77 is a document prepared by some other member of the force which specifically names Garda Walshe as a person suspected of associating with, and leaking information to Michael Edwards, a member of the I.R.A., about garda operations in Limerick. It has an existence and importance independent of Detective Inspector Fennessy, a factor I would view as being of great significance in providing material or grounds for the formation of the suspicion required by the section, which, as this court held in Quilligan, must be one which is “not unreasonable” .
I think counsel for the appellants is correct when he states that the learned trial judge elided the distinction between having a bona fide and reasonable suspicion on the one hand and the reason for making the arrest on the other.
It is undeniable that the reason for making the arrest was the direction given by the superior officer. However that does not mean that the arresting officer did not have his own reasonable suspicion based on the information already in his possession from his perusal of the C77. The fact that he had not made any arrest up to that point, or investigated Walshe further, is not the issue. One can think of many examples in this regard where one can have the suspicion but not act. For example, a security guard may have a bona fide and reasonable suspicion that a customer in a shop is shoplifting on a regular basis, but may not act on that suspicion until a triggering event occurs. There can be all sorts of discretionary considerations to explain why a person who harbours a bona fide and reasonable suspicion might not progress to executive action until some triggering event takes place. An obvious example would be the case where one does not have the requisite evidence which would be both admissible in a court of law and sufficiently probative to result in the conviction of a suspect.
I think Detective Inspector Fennessy did have all the material necessary to form a reasonable suspicion at the time of the arrest. I further believe that any independent observer, applying an objective test, would so conclude and that the criterion in this case was satisfied for the reasons stated.
I would therefore allow the appeal in the case of Garda Walshe and substitute instead a finding that the arrest of Garda Walshe was valid and lawful. Counsel for the plaintiff did not demur from the proposition that this was the appropriate course for the court to adopt in the event of a finding that the ruling of the learned trial judge was found to be in error on this issue. It follows, therefore, that the award of damages in favour of Garda Walshe must be set aside.
I have, however, reached a different conclusion in respect of Kay Bedford. Bearing in mind at all times the concession made on behalf of the State appellants that a direction from a superior officer alone is not sufficient to ground a reasonable suspicion, one must then inquire what additional material was available to inform the mind of the arresting officer, Sergeant O’Shea.
Plainly, the learned trial judge was not impressed with the evidence tendered on behalf of the appellants in this regard and implicit in his ruling is a level of disquiet as to the credibility of the evidence offered by that witness.
Sergeant O’Shea never saw the C77.
When questioned as to the grounds for his suspicion, the arresting officer merely stated that her name had “cropped up” on occasions, a statement so nebulous and general in nature as to be virtually meaningless.
Counsel for the appellants has further pointed us to other references in the evidence of Sergeant O’Shea in which he stated his belief that Ms. Bedford was “associating with members of the I.R.A.” (Day 5 Q 351/2). In the course of his evidence Garda O’Shea also stated (Day 5, Q 355):-
It is evidence of the most general kind, with no specifics, no detail, and no context. It has no separate corroboration, in that no evidence was called which would corroborate or lend substance to what is no more then a mere assertion.
I would therefore be of the view that the appeal in the case of Kay Bedford should be dismissed. In so far as quantum is concerned I can conceive of very few things more damaging than to be wrongfully arrested on suspicion of being a member of the I.R.A..
Her arrest occurred just as she was preparing to go out on the particular evening and she was totally unprepared for the high speed journey to Dublin and her subsequent incarceration in the Bridewell. It further appears that the arrival of both Garda Walshe and Ms. Bedford was known to the press and that there may have been a press presence at the entrance to the Bridewell. While the evidence on this matter was fairly sparse, objection having been taken by counsel for the appellants that no pleading in Garda Walshe’s case had been made to include such particulars, the fact that there was a media presence does not appear to be contested. The only relevance of this in the present case is to indicate how the fact of the arrests became more widely known in the locality in which the plaintiff resides. That it did so is undeniable, and the plaintiff gave graphic evidence of how she lost a number of friends and suffered great humiliation as a result of her ordeal. The jury had every opportunity to view the demeanour of the witness and make its own assessment of the distress this whole experience must have caused to Ms. Bedford.
I would not regard the award of damages in her case as being in any way excessive and would dismiss the appeal in her case.
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221/04 & 222/04
THOMAS A. SLOYAN, THE MINISTER FOR JUSTICE,
IRELAND AND THE ATTORNEY GENERAL
THE MINISTER FOR JUSTICE, IRELAND
AND THE ATTORNEY GENERAL
JUDGMENT of Mr. Justice Geoghegan delivered the 28th day of July 2005
I have had the benefit of reading the judgment of Mr. Justice Kearns and I gratefully adopt his general summary of the facts relevant to these appeals. I will confine myself to highlighting those parts of the evidence which seem to me to be most relevant in considering the correctness or otherwise of the rulings of fact and law made by the learned trial judge on the liability issue and to which the various defendant/appellants now make objection on this appeal. Of course, other facts are relevant to the assessment of damages against which there is also an appeal in each case.
Let me state at the outset, that in relation to the second of the appeals, that is to say, the appeal of Kay Bedford, I am in full agreement with the views expressed by Kearns J. in his judgment and with his conclusion that that appeal should be dismissed. There is nothing further which I can usefully add on that matter.
It is the Walsh appeal which has caused me much the most difficulty, not least because one of the net points of law involved has never been decided as far as I am aware.
Before treating of the relevant law, I intend reviewing what seems to me to be the salient parts of the evidence and the relevant findings of the learned High Court judge, Quirke J.. In the latter connection it is important to explain that counsel for the Minister and other state authorities Mr. Gerard Hogan, S.C. successfully persuaded the trial judge that all issues of fact as well as law relating to whether the arrest under section 30 of the Offences against the State Act, 1939 was lawful had to be determined by the judge alone and were not permitted to be tried by the jury. This submission seems to have somewhat surprised the trial judge but he accepted it and it appears to have been more or less acquiesced in by the other parties. There is no appeal to this court on that issue. For the purposes of this judgment, I am assuming that the accepted procedure was correct in law.
It is of some importance that I make that clear, because I have no doubt that part of the exercise in which the trial judge engaged was pure fact finding. This court is not entitled to interfere with the trial judge’s findings of fact and, therefore, if there is a finding of fact by the judge (which necessarily led to his ruling on the legality of the arrest being correct) that is the end of the matter and the appeal must be dismissed. I will be explaining later in the judgment why this problem looms large and makes it particularly difficult to form a final judgment as to whether the appeal should be allowed or not.
I turn now to the evidence. I will start with the instructions given to Detective Inspector Fennessy who is the first above-named defendant. These came from his superior officer, Chief Superintendent (later Commissioner) Byrne. In answer to a question from his counsel, Mr. Sean Ryan, S.C., he said the following.
He was asked by his counsel about information which came to his notice shortly before carrying out the instruction to arrest the respondent, Anselm Walshe. This was described as secret information and was in a document marked “C 77” an assignation apparently given to certain forms of high grade intelligence. Mr. Walshe went on to concede that his suspicions were aroused by the contents of the document, these suspicions having attached to two names being the two plaintiffs in this action. The suspicion was that they were members of the I.R.A. It is perhaps at this stage helpful to explain that Inspector Fennessy’s task at the time had been to investigate suspected penetration by the IRA into the Limerick Garda Síochána. Inspector Fennessy went on to give evidence to the effect that the “C 77” document would have come into the hands of his superiors.
“I was told that one Kay Bedford and Anselm Joseph Walshe, the two plaintiffs in this case, were to be arrested the following morning, following the arrest of Dennis Kelly and Margaret Flavin. I was directed that all four prisoners were to be conveyed to the Bridewell garda station in Dublin following their arrest in Limerick, and that to order any person that was travelling with them in the car, or cars, to have no conversation whatsoever with those prisoners.”
Inspector Fennessy then gave evidence that he was familiar with arresting people under section 30 of the Offences against the State Act, 1939 and he was asked what words he used when arresting Anselm Walshe. He said that he had arrested Mr. Walshe “under section 30 of the Offences against the State Act, 1939 on suspicion of membership of an unlawful organisation, to wit the IRA.” The Inspector was then asked had he in fact that suspicion. His answer to that was “I had that suspicion based on the C 77 which was sent to Garda Headquarters.”
Before referring to the next piece of relevant evidence it is important to note that the reason Inspector Fennessy was separately represented from the state defendants in the end was because he believed that he had a grievance, at being left by his superiors, to use a slang phrase, “carrying the can”. Such a grievance even if well-founded is not a justicable issue in these proceedings. A thread running through his entire evidence is a resentment nevertheless on this score. Although it was not a relevant issue in the sense of it being a justiciable issue in the proceedings it might have been regarded as highly relevant to credibility. The following two questions and answers arising out of cross-examination of Inspector Fennessy by Mr. Michael McMahon, S.C., counsel for the plaintiffs puts this matter into perspective:
“Q. In the defence that was put in by the State when the State was acting for you, they said in that defence that you were the person in respect of Anselm Joseph Walshe who had the necessary, reasonable suspicion to arrest him under section 30? We won’t get into what your suspicion was. What the defence said at that time was that you were the person who had that reasonable suspicion?
A. I felt, My Lord, that I was carrying the burden of the arrest of Anselm Walshe personally where that was not the case.
Q. We will come to that in a moment. I just want to get the factual set up correct first of all. When the defence was first put in in 1993 on your behalf and on behalf of the State, your employers, it was to the effect that you were the person who had the reasonable suspicion that Anselm Walshe had committed or was about to commit … (interjection)?
A. I agree with counsel. I had suspicion but I was obeying a lawful order. In other words, if it was left to me on my own bat I would not have arrested Anselm Walshe.”
When asked about the plea in the State’s defence which stated:
and as to whether that was right, Inspector Fennessy said: “That is correct, My Lord.”
“The first-named defendant had a reasonable suspicion that the plaintiff had committed or was about to commit a scheduled offence. Membership of an illegal organisation under the Offences against the State Act, 1939.”
Inspector Fennessy was then asked about a separate defence that was filed on his own behalf. That contained the following plea:
Mr. McMahon then suggested to the Inspector that in that plea there was no suggestion by him that he had “a reasonable suspicion”. He replied to that that while he had the suspicion, he was acting on direct orders. Inspector Fennessy had given evidence about two incidents that might have given rise to suspicion of Mr. Walshe. These became known as “the Sarah Duggan incident” and the “Newtown Perry Public House incident”. I will expand on those incidents later on in the judgment though at this stage it is sufficient to say that he was asked whether those incidents would have been enough to justify his arresting Mr. Walshe. He gave the following answer:
“If the plaintiff was arrested by the first-named defendant, which is denied, … such arrest was executed in the course of the first-named defendant’s duty as a serving member of the Garda Síochána and when carrying out the instructions and directions of a superior officer and while acting on and with their authority.”
It was then put to him that he did not take the decision. Inspector Fennessy did not give a direct answer to that question but said that he had been very fair to everybody. He was then pressed as to whether based on the information he had – “the three pieces of information” (the third being the “C 77” document) he would not have had a reasonable suspicion sufficient to arrest Mr. Walshe. His expansive answer to that question was as follows:
“To arrest a policeman, very few policemen have arrested policemen. I don’t take kind to arresting any policeman. I was tasked with the job to arrest a policeman, Dennis Kelly, an IRA mole in the Garda Síochána. Anselm Walshe was not my task in Limerick but because of the suspicions … and they were suspicions … that very sensitive and secret material and moles in the Garda Síochána were in Limerick my authorities did see a very very serious situation and they took the decision.”
This was a reference to a long delay in bringing the case to a hearing. The Inspector then expanded further. He said:
Nobody would arrest a policeman unless you were ordered or you discussed it with your authorities. I don’t go out and put my hand on a policeman tomorrow morning. If I catch him committing a crime, certainly I arrest him. If I catch him doing a robbery I will arrest him. But in relation to the Offences against the State Act, I agree with Anselm Walshe. It is the most devastating thing to be arrested for. He is a policeman. His father was a policeman. I come from a third generation of police. I can fully understand that that man wanted questions asked. I want questions asked. I am twelve years waiting for this court case to be taken. It is only for I file my own defence in this case. I am the first-named defendant and this case was not done by the State to this court (by which he apparently meant it was not brought by the State to this court).”
At that point there was a significant bit of dialogue between Mr. McMahon and the trial judge. The trial judge pointed out that the Inspector had indicated that he had a suspicion. Mr. McMahon suggested to the judge that the significance of the Inspector’s evidence was that whereas he had a suspicion it was not one which would “have led him to arrest”. I want to flag that answer at this stage in the judgment in that it raises what I think was the real question of law in this case and that a great deal of time was taken up in legal argument that did not really relate to that question. As I understand it, nobody suggested that Inspector Fennessy did not have a reasonable suspicion that Mr. Walshe was a member of the IRA. Equally, nobody suggested that that suspicion was not bona fide held. Again, there is no controversy that Inspector Fennessy purported to make the arrest of Mr. Walshe under section 30 of the Offences against the State Act, 1939. On one view of the law therefore all the ingredients were present for a valid arrest. But the question arises must there be a causality ingredient also? What I mean by that is, is it sufficient for the arresting garda to have the required suspicion even if he would not have made the judgment call that an arrest was appropriate. As I see it this appeal ought only to be dismissed if that is the law and surprisingly, little attention was paid to that precise question in the extensive legal arguments. I have strong views which differ from those of Kearns J. as to whether in considering the reasonableness or otherwise of a suspicion, the orders from above without more are relevant either substantially or as a makeweight and I will express them later in this judgment. But anything I do say will, in my view, be obiter dicta because I do not think that issue is relevant at all in this case. If Inspector Fennessy had not only carried out the instructions but accepted that his own suspicions justified the arrest, it is inconceivable that in, say, a subsequent criminal trial, if such had taken place of Mr. Walshe, the validity of the arrest could have been challenged. This is another way of reiterating that nobody was really suggesting that Inspector Fennessy’s suspicions might not objectively have been sufficient. All that was being brought out in evidence by Mr. McMahon was that the Detective Inspector himself would not have judged them sufficient.
“They knew I had suspicion but they are leaving out the authority. They are leaving out that I was ordered to do so. My main (grievance) with the State was that I have asked for the last twelve years what is the position with this case? What have you done to me?”
Ideally, I should not be deviating into points of law while reviewing the evidence but it seemed appropriate to make those comments arising out of the last bit of evidence to which I referred at the stage that I am referring to it.
Returning to the evidence itself, Inspector Fennessy went on to agree yet again with Mr. McMahon that if it had been left to him he would not, at that point of time, or at that stage arrested either Mr. Walshe or Ms. Bedford and he made the point that he did not investigate either of the two. Indeed the evidence was that Inspector Fennessy had primarily been investigating a different member of the gardaí, Denis Kelly. He explained in evidence that in that connection he had received various threats from the Provisional IRA. After repeating yet again that he was acting only on orders from his superior officer, Inspector Fennessy said that he would not have carried out the arrest if it was left to his own devices. He said that he would not have done so until he had enquired further into the nature of the suspicion based on the “C 77” document.
There then ensued some legal argument as to whether the “C 77” document should be produced either in whole or edited or at all. Mr. Hogan argued that this matter was res judicata having already been ruled on by Costello J. in a discovery application in the proceedings some years earlier. Costello J. had ruled in favour of a plea of privilege in the sense of a plea that the contents of the document should remain confidential. Mr. McMahon argued otherwise but the learned trial judge held with Mr. Hogan. There does not appear to be any appeal against that ruling and its correctness, which may be doubtful, is not therefore before this court.
The “Sarah Duggan incident” related to the fact that she was believed to be a member of the IRA, was a cousin of Mr. Walshe and that his ex directory telephone number was found in her flat. This happened against the background of some information that the two plaintiffs in these proceedings, the second being suspected of being a member of the I.R.A., were allegedly passing information to an I.R.A. member by the name of Michael Edwards. The “Newtown Perry Public House incident” related to the fact that Mr. Walshe was allegedly frequenting this public house and that the owner of it was a man believed to be a member of the I.R.A. It afterwards emerged that Mr. Walshe was fully open about his relationship to Sarah Duggan and that he was entirely innocent of any connection with the I.R.A. I do not disagree with the observation of Kearns J. to the effect that substantially the grounds for suspicion on the part of Mr. Walshe were the contents of the “C 77” document.
I do not think it necessary for my purpose to refer specifically to any more of the evidence and I turn briefly to the legal submissions made to the trial judge. Mr. Hogan conceded from the start and, in my opinion, conceded at the hearing of this appeal also that the suspicion had to be that of the arresting garda. He took as his authority for that proposition a passage from the judgment of Walsh J. in The People (DPP) v. Quilligan  I.R. 495. At p. 507 Walsh J. said the following:
It is quite clear from that passage that the receipt of instructions to arrest could never be sufficient. Interestingly, that view of the law is in line also with the modern English cases to which we have been referred dealing with somewhat analogous statutory provisions. I would especially refer to the speech of Lord Hope of Craighead in O’Hara v. Chief Constable of the Royal Ulster Constabulary  AC 286. In the same case Lord Steyn also delivered an opinion. He explained that leave to appeal had been granted by the appeals committee because it was thought that the appeal raised an issue of general public importance. He went on to observe that counsel on behalf of the Chief Constable had raised what he called an issue of principle. Counsel had submitted that the order to arrest given by the superior officer to the arresting officer was by itself sufficient to afford a constable a reasonable suspicion within the meaning of the relevant section. In making this submission, counsel for the Chief Constable had largely relied on the decison of the House of Lords in McKee v. Chief Constable for Northern Ireland  1 W.L.R. 1358. That case was dealing with a different statutory provision and in the course of the single judgment Lord Roskill said the following:
“It is to be noted that before exercising any of the powers conferred in s. 30 the garda concerned must have the required suspicion. Whether or not the garda in question has the required suspicion is itself a question of fact, because if he has not then the action taken by virtue of s. 30 and purported pursuant to s. 30 would be illegal. Furthermore the suspicion must be one which is bona fide held and not unreasonable – see views of this Court in The State (Lynch) v. Cooney  I.R. 337 when dealing with the “opinion” formed by the Minister in question. The “suspicion” of a member of the garda in relation to s. 30 is not beyond judicial review as is clearly established by the decision of this Court in The State (Trimbole) v. The Governor of Mountjoy Prison  I.R. 550.”
Lord Steyn, however, went on to point out that the statutory provision under consideration in the McKee case did not require that an arresting officer must have reasonable grounds for suspicion. In that respect it is quite unlike section 30 of the 1939 Act in this jurisdiction. In fact the legislation in question was for the purpose of internment. Lord Steyn was highly critical of the fact that the case was used at all. Lord Steyn said the following:
“On the true construction of s. 11(1) of the statute, what matters is the state of mind of the arresting officer and of no one else. That state of mind can legitimately be derived from the instruction given to the arresting officer by his superior officer. The arresting officer is not bound and indeed may well not be entitled to question those instructions or to ask upon what information they are founded.”
He considered that McKee was irrelevant to the point of principle then under consideration.
“I would hold that it is a misuse of precedent to transpose Lord Roskill’s observations made in the context of the subjective requirement of a genuine belief to the objective requirement of the existence of reasonable grounds.”
What may possibly be in conflict with The People v. Quilligan is the judgment of the Court of Criminal Appeal delivered by Henchy J. in The People (D.P.P.) v. McCaffrey  ILRM 687. If there is a conflict between what was decided in that case and what was decided in The People (D.P.P.) v. Quilligan cited above, I would point out that not only is the decision in Quilligan that of a higher court but it was also delivered much later. The judgment in McCaffrey was delivered on the 30th July, 1984. The judgment in Quilligan was delivered on the 25th July, 1986. It is of some significance also that Henchy J. was a member of the court in the Quilligan case. As far as I can check from the written submissions Mr. Hogan although partly relying on McCaffrey’s case, does so really on another basis. I would have to agree with Kearns J., however, that it is certainly open to the interpretation that an instruction from a superior to arrest under section 30 might be sufficient for it to be said that the arresting garda had the necessary suspicion. However, that does not seem to be the law and, in my opinion, it must be wrong in principle. The requirement of the suspicion by the arresting garda is a protection given to the citizen by the express terms of section 30 of the Offences against the State Act, 1939. What the Oireachtas at that time would have had in mind was that the garda who made the arrest was a garda who in some way or other was involved in the relevant investigation or at the very least had been given sufficient hearsay information for him to form the opinion. In my view, the instruction to arrest from a superior officer is not sufficient in itself. But there is nothing to prevent a superior officer who gives the instruction accompanying it with a few elementary facts whether of a hearsay nature or otherwise sufficient for the arresting garda himself to have the suspicion.
Although I have treated of this issue, it does not seem to me to really arise. As far as I can recall, Mr. Hogan at no stage has relied on the instructions except that at the hearing of the appeal under judicial prompting he did rather diffidently say that it might have been an added factor. I believe at any rate that this entire issue is irrelevant because, as I indicated earlier in this judgment, nobody could have challenged the arrest on the grounds of objective unreasonableness if Inspector Fennessy had accepted that he was arresting under his own suspicion under section 30. The real problem that arises in this case is that the Inspector says that although he had a suspicion and that it was a reasonable one he would not have regarded it as sufficient to warrant an arrest.
I think that I can summarise Mr. Hogan’s submissions by saying that he argued in the first place that the suspicion must be by the arresting garda, that that suspicion must not be unreasonable and that if those two requirements are fulfilled the arrest is then lawful.
I turn now to the ruling on this matter by the learned trial judge. The ruling is quite substantial but the kernel of it is to be found in the following two paragraphs.
The judge says much the same in different wording later on in his ruling when he observed as follows:
“To exercise the power (lawfully), therefore, an arresting officer must first have the suspicion, which is bona fide, and not unreasonable, that the person whom he is about to arrest has committed or is about to commit the offence for which he is to be arrested. In this case, the offence concerned is membership of the IRA.
It follows I think logically that this suspicion, bona fide and not unreasonable, must be the motivating factor for the arrest. An arrest effected for reasons unconnected with this suspicion would not be a lawful arrest under the section.”
Earlier in this judgment, I posed the question as to what might have happened if in fact Mr. Walshe had been put on trial. Could he have successfully challenged the arrest if some of the evidence depended on the validity of the arrest? I have come to the conclusion that he could not. Otherwise, not only would the existence of a reasonable suspicion by the arresting garda be an essential requirement but what would also be essential would be agreement by him that a correct judgment call had been made by his superiors in requiring him to arrest. I have come to the conclusion that that is stretching the requirements of section 30 beyond what could conceivably have been intended. If the requirement of what I have referred to as the “judgment call” had to exist (which I believe it did not have to) then there was a clear credibility issue. Given that Inspector Fennessy was effectively in dispute with his superiors over being made, as he saw it, carry the responsibility for the arrest, it would necessarily always have been doubtful as to whether he was telling the truth when he said that notwithstanding the information he had and notwithstanding the suspicion which he undoubtedly had he would not have effected the arrest but for the orders. However, the trial judge, as he was entitled to do, decided that credibility issue in favour of Inspector Fennessy. If, therefore, the trial judge was correct in his legal approach, the appeal would clearly have to be dismissed because this court could not interfere with that finding of fact on credibility. However, for the reasons which I have indicated, I think that the trial judge did not apply the correct legal principles. Here again there would seem to me to be a little confusion in his findings. Although early on in his ruling he seemed to attach importance to the causality aspect, that is to say, that the suspicion on the part of the arresting garda had to be “the motivating factor for the arrest”, later on in the ruling, he appears at times to be questioning whether the required reasonable suspicion existed. If that was his view, I am satisfied that it was not justified by the evidence, in particular having regard to the evidence of Inspector Fennessy himself in relation to the “C 77” document. Any court would have sympathy with Mr. Walshe in what happened to him and if he was able to establish a cause of action he was certainly entitled to very substantial damages. But I have come to the conclusion that the arrest was lawful and I would, therefore, allow the appeal in his case and set aside the judgment given in his favour in the High Court.
“So that what must be discovered and considered in order to determine whether or not the arrests on that day were lawful is whether on that date Detective Inspector Fennessy … had a suspicion which was bona fide and not unreasonable that Anselm Walshe … (was a member) of the IRA and that the suspicion was what impelled and gave rise to the arrests which followed.”
Walshe v. Fennessy & Ors.
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