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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Shortt -v- The Commissioner of an Garda Síochána & ors  IESC 9 (21 March 2007)
Cite as:  IESC 9,  4 IR 587
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Judgment Title: Shortt -v- The Commissioner of an Garda Síochána & ors
Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J.
Judgment by: Murray C.J.
Status of Judgment: Unapproved
Outcome: Allow And Vary
THE SUPREME COURT
Murray C.J. 394/05
THE COMMISSIONER OF AN GARDA SíOCHáNA,
IRELAND AND THE ATTORNEY GENERAL
JUDGMENT of Murray C.J. delivered on the 21st day of March, 2007
The plaintiff, Mr. Shortt, has been the victim of disreputable conduct and a shocking abuse of power on the part of two Garda officers, namely a Superintendent and a Detective Garda. They both engaged in a conspiracy to concoct false evidence against the plaintiff which in turn resulted in perjured Garda evidence being given at his trial for allegedly permitting drugs to be sold in his licensed premises in Co. Donegal in 1992. That perjury procured his conviction by a jury. What followed as a consequence for the plaintiff was a tormenting saga of imprisonment, mental and physical deterioration, estrangement from family, loss of business, public and professional ignominy and despair. Furthermore, as the learned High Court Judge put it, “[T]he plaintiff was sacrificed in order to assist the career ambitions of a number of members of the Garda Síochána.”
Driven by the injustice of his situation he finally obtained an Order setting aside his conviction by the Court of Criminal Appeal in November 1992 when the D.P.P., for reasons that were never disclosed to that Court, consented to such an Order. Finally in July 2002 the Court of Criminal Appeal certified that he had been the subject of a miscarriage of justice. In proceedings subsequently initiated before the High Court he was awarded damages for the wrongs which he has suffered. He has appealed against the award of damages made by the High Court on the grounds that those damages are inadequate. The sole issue in this appeal therefore concerns the amount of compensatory damages and exemplary or punitive damages to which he is entitled.
Unfortunately, the conduct of the Garda officers before, during and following the trial and associated circumstances cannot but reflect negatively on the Garda Síochána.
However, it must also be borne in mind, that there are currently upwards of 12,000 members of An Garda Síochána serving in the community. The Garda Síochána, having as its role the maintenance of law and order, the enforcement of the law and protecting the security of the State, is an institution which, since its foundation in 1922, has been an essential part of our democratic fabric.
Its members, as over 80 years of history records, have served the community with dedication and often with great bravery at the risk of or actual loss of life. Exceptional or spectacular successes in combating crime are usually well publicised but on a day to day basis the individual Garda member invariably works unpublicised within all sections of the community but particularly on the margins of society where they have to confront determined criminals willing to use every means at their disposal, including wanton violence, to further their ends. They are the first line of defence against hardened criminals who have not the slightest regard for the interests of the individual citizen be they young or old. On a daily basis, or rather on a nightly basis, they may have to confront, in a whole range of situations from street crime to domestic violence, individuals, drunk or otherwise, who are hostile or offensive towards them. Its members in these difficult situations traditionally exercise their powers with discipline and restraint.
There are also a myriad of situations in which the Garda member must undertake, as a matter of duty, difficult and personally painful tasks whether it be the recovery and handling of a decomposed body from a river or premises, removing a mutilated body of a person or child from a crashed motorcar or informing a parent or spouse of the death of a loved one. They also serve the community in what might be called a more positive role such as by way their programme of support for the victims of crime, the Garda Primary Schools Programme, the Youth Diversion Project which has as its aim the rehabilitation of young offenders, support for neighbourhood watch schemes, to name but some of the forces’ direct community projects.
As I have already mentioned much of the day to day dedication of members of the Garda force in difficult circumstances goes unpublicised and perhaps unrecognised. Nonetheless it is because of its consistent tradition of dedicated public service that the Garda Síochána has obtained and retains to this day the general support and respect of the community at large.
Unfortunately, as experience in this country and other countries demonstrate, departures, sometimes the gravest of deviations, from normal standards of conduct and professionalism occur in police forces. Left unchecked there is always a risk that low standards will infect elements of such a force.
One cannot but be aware of reports of the evidence placed before and being enquired into by the Morris Tribunal in relation to Garda conduct and operations in Co. Donegal. Neither that evidence, nor any interim findings of the Tribunal, are before us but the facts and circumstances of this case emanate from that county and involve specific individuals who were serving members of An Garda Síochána at the relevant time.
The conduct of those two members probably constitutes the gravest dereliction of duty and abuse of power that one could ever fearfully contemplate would be engaged in by servants of the State and officers of law and order. Partly, but by no means solely, because they have sullied the reputation of the Garda Síochána the gravest view must be taken of their conduct.
This affair is regrettably a stain of the darkest dye on the otherwise generally fine tradition of the institution of An Garda Síochána. The facts and circumstances are a pot of iniquity which may be seen by some as reflecting on the Garda Síochána as a whole much to the potential demoralisation of upstanding members of the force which constitute the vast majority. Such a broad conclusion would be an unwarranted and disproportionate response to this affair however badly it may be viewed. The force is replete with dedicated and highly professional members. There is no suggestion in these proceedings that the traditional respect for the authority of An Garda Síochána generally, so important to the community at large, should be set aside.
However, this affair cannot be bracketed as a couple of bad apples in the proverbial barrel. The misconduct penetrated the system of law enforcement too deeply and persisted over too long a period to be discounted in such a fashion. Concrete independent evidence of the wrongful conspiracy against Mr. Shortt only emerged in the course of an official Garda investigation into affairs in Donegal. The matters concerning Mr. Shortt may only have been a rather small part of that investigation but the lack of immediacy or action in response to the evidence which emerged concerning his trial does raise such questions as to whether there is some complacency at different levels in An Garda Síochána with regard to the exacting standards of integrity which must at all times be observed by its members. The cavalier manner in which those two members set about concocting evidence and subsequently persisted in trying to cover up their misdeeds, not entirely out of sight of other Garda members, displayed a worrying confidence on their part that they could get away with it.
These are not matters with which this Court are directly concerned in these proceedings although the gravity of the abuse of power involved is a material factor in determining any question relating to exemplary or punitive damages.
Ambit of the plaintiff’s claim as set out in his Statement of Claim
The ambit of the plaintiff’s claim for damages as set out in his Statement of Claim, although these were presented in a more focused form at the hearing before the High Court, were as follows:
3. Damages for conspiracy.
4. Damages for negligence and breach of duty.
5. Damages for malicious prosecution.
6. Damages for false imprisonment.
7. Damage for loss of reputation including, but not confined to, damages for libel and slander.
8. Damages for deliberate and conscious abuse of statutory powers.
9. In respect of each claim for damages at (1), (2), (7) above, aggravated and / or exemplary damages.
10. Interest pursuant to statute.
Damages awarded in the High Court
At the conclusion of his judgment the learned High Court Judge awarded the appellant the following damages:
4. Special damages under
6. Loss of nett of tax profits at the Point Inn: €550,000.00
Early background facts – The plaintiff and the Point Inn
First of all I think it should be emphasised that in these proceedings the State has not suggested that there are any grounds whatsoever for impugning Mr. Shortt’s essential good character or his standing as a citizen of this country. He had, in the past, been in breach of the licensing laws in serving alcohol after hours but there was no suggestion that he had ever been involved in serious criminal activity, let alone been involved with the sale of drugs on his premises. On the contrary his evidence that he cooperated freely with the Gardaí with a view to detecting any illegal use or dealing in drugs was not challenged.
Neither has the State contested the facts relating to the procurement of his conviction, its subsequent quashing and the consequences for the plaintiff personally, other than certain financial consequences.
The plaintiff was born in 1935. He is a chartered accountant by profession and in his early professional career was associated with Kennedy Crowley & Co., subsequently Stokes Kennedy Crowley, Chartered Accountants. He married in 1967. There are five surviving children of the marriage, one young son having died in a tragic accident. Following his marriage he went to Canada where he worked, inter alia, for well-established firms of chartered accountants. He returned to Ireland in December 1970. On his return he became involved in running, in conjunction with a brother Louis, a licensed premises known as the Point Inn, Quigley’s Point, Co. Donegal. The Point Inn had been owned by his great-grandfather, his grandfather and then his father. His brother died in 1991 and for a while he was not involved in running the business but eventually, at the end of 1991, he and his wife became full owners of the Inn. At that time in 1991 the business of the Inn had run down and was not trading well. He closed the premises and with the aid of a mortgage of £50,000.00 on his family home it was re-equipped, renovated and re-opened in April 1992. While the bar operated every night a discotheque / cabaret operated one night per week. The vast majority of the clientele came from across the border. Across the road from the Point Inn was an eight acre site and in 1989 the plaintiff sought and obtained planning permission for a caravan park.
The nightclub aspect of the business was for a short period conducted under the style “The Dungeon” and by May 1992 had changed its name to “Rave in the Cave”. From the opening of the newly revamped nightclub aspect of the business in April 1992 difficulties arose between the plaintiff and the local Gardaí.
In summary these difficulties commenced on the opening night when the nightclub was visited by Sergeant John McPhillips who, on leaving the premises told the plaintiff, in the hearing of patrons, “get your house in order”. The plaintiff failed to receive an explanation for this statement. (But as the learned trial Judge found, it may have been a reference to the fact that there had been several breaches of the laws on opening hours by the plaintiff.) He raised this matter subsequently at a meeting with Superintendent Kenny, the Garda officer in charge of the district, who agreed to look into the events of the opening night. At that stage no mention of illegal drugs was made. However on subsequent weekends in May and June the nightclub was the subject of a visitation by Sergeant McPhillips with, on most occasions, seven or eight Gardaí. There was also evidence of a Garda checkpoint being set up approximately one mile from the Point Inn for the purpose of checking people who might be going there. The occupants of cars were asked if they were going to the Point Inn and if they said so their cars were searched. Following complaints and representations by the plaintiff to the Superintendent a meeting took place between them in the earlier part of June 1992 at which it was agreed that undercover Gardaí would attend at the premises to address the possibility of illicit use or dealing in drugs there. Apparently this took place regularly until early August. In the meantime, then Inspector Lennon, later to become Superintendent Lennon, one of the chief figures in this case, attended the premises of the plaintiff on 21st June and spoke to him about the possibility of illegal drugs being on the premises.
On the night of 3rd August, the August Bank Holiday weekend, the Gardaí raided the nightclub at about 12:30 a.m. in the morning. The plaintiff first of all observed a group of men wearing helmets and visors running out of the car park towards the main entrance of the nightclub. He then observed that they were Gardaí. The plaintiff was knocked out of the way by the first Garda. There were about 60 Garda in all. Most were wearing helmets with their visors down and carrying flash lamps. Other Gardaí broke into two emergency exits with sledgehammers. Patrons were manhandled, and some male patrons were searched and had their pants pulled down. All of this lasted an hour. Some 10 or 12 patrons were arrested but it transpired that none were subsequently charged with any offence. The plaintiff made a complaint to Superintendent Kenny following this incident which was reported at that time in the Derry Journal. Following this incident undercover Gardaí continued to attend the premises.
In September 1992 the annual sitting of the District Court for the licensing of licensed premises took place and during September the plaintiff received notification from the Gardaí of their intention to object to the renewal of his liquor license, dancing license and restaurant certificate.
Shortly after that he was served with 32 summonses containing charges which alleged that the plaintiff had knowingly allowed the dealing of drugs on his premises on various specified dates.
On 18th September, 1992, following objection from the Gardaí, the District Court refused to renew the licenses in question. The plaintiff appealed to the Circuit Court and continued trading pending the appeal. The appeal to the Circuit Court was later adjourned from time to time pending the outcome of the criminal prosecutions.
From charge to trial
For the purpose of assessing damages pursuant to s. 9 of the Act of 1993 the High Court deemed the 1st October, 1992 to be the date on which the plaintiff was charged with criminal offences.
In February 1993 Gardaí, numbering between 80 and 100, raided the plaintiff’s premises in a similar fashion to the earlier substantial raid. It lasted about 1½ hours. There were a number of arrests and some tablets were found. Again on that occasion doors were broken in. The plaintiff complained to the Minister for Justice and the Garda Complaints Board arising from this raid. He felt his premises were being unfairly targeted and that the operation was out of proportion to any perceived problem.
In or about this time a threat was made on the plaintiff’s life by the IRA and he closed the premises on 8th September, 1993. He opened the premises during the Christmas period and the threat was repeated in early January 1994 and the premises closed again. In evidence before the High Court the plaintiff expressed his belief that the threats arose as a result of the adverse publicity following the Garda raids. The premises reopened in April 1994 and throughout the summer of 1994 there were regular Garda roadblocks in the vicinity of the premises.
On 30th September, 1994 the third major Garda raid occurred with this time with well over 100 Gardaí participating. The raid was conducted in a manner similar to the two previous major raids. Doors, tables and other items on the premises were damaged. A number of arrests were made and searches were conducted in the car park.
Having appeared before the District Court on a number of occasions in February 1993 the plaintiff elected for trial in the Circuit Court before a Judge and jury. On the application of the D.P.P. the plaintiff’s trial was transferred to Dublin.
The first trial commenced in late October 1994 but was aborted due to prejudicial reporting in the newspapers.
The plaintiff gave evidence of having suffered a great deal of stress at the time both because of the offensive nature of the publicity, its damage to his business as well as the fact that the first trial was aborted.
In July 1994 the plaintiff found he was unable to insure the Point Inn premises. Furthermore, he was under risk of losing his license for the premises. He placed the Point Inn on the market at the asking price of £500,000.00. No sale was concluded and the plaintiff believed this to be due to prospective purchases awaiting the outcome of the trial in the belief that the premises could be obtained at a lesser price if he should be convicted.
The plaintiff’s trial on criminal charges commenced in February 1995 and lasted eight days.
He was convicted and sentenced to three years imprisonment and fined £10,000.00.
He was to serve 27 months in prison.
Before referring to the course of events subsequent to the plaintiff’s conviction and those which ultimately led to that conviction being quashed I think it is convenient to set out here the factors which tainted his trial and led to a perversion of the course of justice.
These factors consisted mainly of conspiracy to provide false evidence and perjury at the trial.
The case for the prosecution was set out in the Statements of Witnesses for the Prosecution contained in what is known as the Book of Evidence.
The prosecution’s case contained fundamental weaknesses which were identified by counsel for the D.P.P. in an advice on proofs furnished to the Chief State Solicitor in advance of the trial. This advice on proofs was furnished to Detective Garda McMahon and Superintendent Lennon. I think it is sufficient for present purposes to refer to the principal deficiency in the evidence identified by counsel namely the absence of any evidence, specifically in the statement of Detective Garda McMahon, that the accused, Mr. Shortt, saw and permitted illicit transactions of drugs on the premises. This would have been a key element in any case against Mr. Shortt and was so identified by counsel for the D.P.P. Detective Garda McMahon was the primary witness for the prosecution with regard to the alleged drug dealing on the Point Inn premises.
This identified weakness in the case for the prosecution was the genesis of the conspiracy and perjury which was to follow in the lead up to and at the trial.
Full details of the nature and context of all these events are set out in the judgment of the Court of Criminal Appeal in Shortt –v- D.P.P. delivered by Hardiman J. on 31st July, 2002. The terms of that judgment were relied upon by the plaintiff in these proceedings without objection by the State.
In general terms what occurred was that Superintendent Lennon, who had been in charge of operations in relation to the plaintiff and the Point Inn, and Detective Garda McMahon, with a view to filling the lacuna in the prosecution case, set about preparing a second witness statement which would be served on Mr. Shortt before his trial as notice of additional evidence which Detective Garda McMahon would give at the trial. A number of meetings took place between Superintendent Lennon and Detective Garda McMahon with regard to the preparation and concoction of this second statement both in the former’s office and, on one occasion, in Detective Garda McMahon’s home where a version of the statement was actually typed up. A first version of the second statement which had been drawn up by Detective Garda McMahon did not, in the eyes of Superintendent Lennon, go far enough. As a result of proposals made by Superintendent Lennon the Detective Garda duly included further additions to the second statement which purported to say, inter alia, that certain illicit drug transactions which he saw taking place in the Point Inn also occurred within the view of or within “eyeshot” of the plaintiff. This additional evidence was intended to copper-fasten the case against Mr. Shortt.
In the event, Detective Garda McMahon gave such evidence at the trial. As the Judge at that trial told the jury Detective Garda McMahon’s evidence was the key evidence for the prosecution. At the trial Detective Garda McMahon was strongly cross-examined on this evidence, as well as other evidence. For the purpose of giving evidence he had recourse to his notes which he stated at the trial were contemporaneous notes. He also gave evidence that the second statement was drawn up from his actual recollection of what took place at the time.
We now know that to be false evidence as found by the Court of Criminal Appeal. He also deliberately concealed from the Judge and jury and the defence at the trial, by way of false evidence, the original notes concerning his visits to the plaintiff’s premises and all notes and documentary material relating to the drawing up of the second statement all of which emerged much later and were before the Court of Criminal Appeal. These latter included notes annotated by Superintendent Lennon with a view to the concoction of further evidence that Detective Garda McMahon would give at the trial. The Court of Criminal Appeal concluded that this principal part of the additional evidence of Detective Garda McMahon was false and untrue. It also concluded that both he and Superintendent Lennon concealed this at the hearing before the Court of Criminal Appeal.
What occurred can only be characterised as a conspiracy between the two Garda officers to defeat the ends of justice in which they both stood over perjured evidence given at the trial.
Much later in the aftermath of the trial these circumstances were to give rise to tensions, recriminations and bitterness between Superintendent Lennon and Detective Garda McMahon.
Superintendent Lennon exploited the dubious success of his operations and conviction by putting himself forward and obtaining a Garda award for his professionalism. With this in turn he sought and obtained public acclamation through the media.
Bitter at Superintendent Lennon getting exclusive credit when he had to do the nasty work Detective Garda McMahon was to tell his wife that he committed perjury when giving evidence at Frank Shortt’s trial, as Mrs. McMahon stated in her evidence which was accepted by the Court of Criminal Appeal. She had previously told this to the Garda investigation but a note of her account appears to have been lost sight of until it emerged in the course of that hearing before the Court of Criminal Appeal.
Another bizarre twist in the aftermath of this trial was some four years later when as a result of tensions between the former conspirators a “letter of satisfaction”, as it was described in the Court of Criminal Appeal, came into existence, one particular draft of which was drafted by Superintendent Lennon himself. This was a proposed letter that Detective Garda McMahon was to write to Superintendent Lennon the substance of which was to declare that he, Detective Garda McMahon, had no information prejudicial to the career of Superintendent Lennon and that he had never known the Superintendent to act unlawfully in the course of any Garda operation. The Court of Criminal Appeal described this letter as evidence of an awareness on the part of Superintendent Lennon that his actions in the procurement of the additional statement were unlawful and if revealed would gravely damage his career.
I mention these latter matters in order to recall how both Superintendent Lennon and Detective Garda McMahon were determined in their persistence post-trial to cover up and conceal any perjury which took place at the trial itself and this was continued up to and including the hearing before the Court of Criminal Appeal.
The victim of the machinations was of course Mr. Shortt himself who had to suffer through them in the knowledge that the evidence in question was false.
Immediate aftermath of the trial
At the conclusion of the trial the plaintiff was convicted on 13 counts and sentenced to three years imprisonment on each count, to run concurrently and fined a sum of £10,000.00. His first appeal to the Court of Criminal Appeal against conviction and sentence was unsuccessful except for the removal of the fine. He served 27 months in prison.
There were still a number of summonses outstanding against the plaintiff and he was brought back to Court from prison on a number of occasions in connection with these summonses but in the end prosecutions were never proceeded with. Nonetheless he had been returned for trial on the other charges and the prosecution for them was hanging over him for a considerable period of time.
This appeal on the issue of damages is of course based on the findings of fact in the High Court.
I think it is necessary to set out in this judgment, as regards the matters which arose after the conviction, those facts, as recounted in the evidence of the plaintiff, which the learned trial Judge accepted.
First of all there is the immediate incarceration of the plaintiff in the aftermath of his conviction:
While in prison he saw a television programme “Drugs in Donegal” in which Superintendent Kevin Lennon appeared in front of the ruins of the Point Inn and stated that the proprietor was then currently serving a term of imprisonment in relation to illegal drugs. This upset him greatly. Also there were several violent incidents in the prison which upset him greatly.”
The question of dropping his appeal
Temporary release and family life
Unsuccessful appeal and continued imprisonment
Having spent twelve weeks in the cell which I have previously described the Plaintiff was moved to the Training Unit in Mountjoy and remained there subject to one interruption until the first week of January 1997 when he was transferred to Castlerea Prison where he finished his sentence on the 14th May 1997 and was released. The interruption related to a period of twelve weeks when he was transferred back to the main prison for disciplinary reasons. In the Training Unit he had a cell of his own. The cell was quite new and comfortable. The building was new. He had wash up facilities but not a toilet. If he wished to go to the toilet he pressed a bell and was normally let out. The officers were more civil than in the main prison except for one officer who was a bully and gave him “a lot of grief”. Dining was in the dining hall. If he wished he could take the food back to his cell. He undertook two courses one in creative writing and one in computers. While the leaflet which he was given about courses promised remission if a prisoner applied himself he received no remission. He did however receive temporary release for four days at his second Christmas and shortly thereafter was transferred to Castlerea which was described as an open prison. The prison itself was surrounded by a high wall but it was open in the sense that the prisoners lived in newly constructed detached houses and conditions were much better than in Mountjoy. There were no educational facilities there and no library. He spent his time walking in a circle around the yard.”
After his release he set about a malicious injury claim in respect of the destruction of the Point Inn. For this purpose a certificate is required from the Chief Superintendent of the Gardaí and he had very considerable difficulty getting this. Some three years following his release passed before the certificate came to hand. The claim was defended by Donegal County Council in that they relied on the Malicious Injury Act 1981 section 12 to reduce or exclude compensation upon the basis that the Point Inn had been used for illegal purposes as evidenced by the Plaintiff’s conviction for knowingly allowing the sale, supply, distribution and possession of controlled drugs on the premises and further that there may have been a direct connection between the use of the premises for illegal purposes and the attack thereon which caused the damage. This added to his sufferings and concerns. The plea was only withdrawn on the date of the hearing after his conviction had been set aside. This compounded the delay by the Garda authorities in issuing the necessary certificate which did not issue for two years and nine months following application for the same.”
In November 2000 the plaintiff’s application to the Court of Criminal Appeal pursuant to s. 2 of the Criminal Procedure Act, 1993 was heard and there being no objection from the D.P.P. his conviction was quashed.
In May 2002 the plaintiff’s application to the Court of Criminal Appeal pursuant to s. 1(9), regarding a miscarriage of justice, was heard by the Court of Criminal Appeal. The decision certifying that there had been a miscarriage of justice was delivered in July 2002. During all this period the plaintiff was suffering from severe stress and anxiety.
Circumstances following the setting aside of the conviction and the grant of a Certificate of Miscarriage of Justice
Following the setting aside of his conviction and the granting of the certificate by the Court of Criminal Appeal the learned trial Judge noted that the attitude of the majority of the community in the plaintiff’s locality towards the plaintiff had improved but not of all the community. He went on to record:
A book of medical reports was put in evidence. It is sufficient for present purposes if I record the opinion of Professor Brian Lawlor, Consultant Psychiatrist following an assessment of the Plaintiff on the 15th September 2004 –
“Although Mr. Shortt has a normal mental state examination at present he has experienced significant emotional distress and two episodes of depression related to events surrounding his dramatic experiences of imprisonment and miscarriage of justice. The prognosis for his depressive episode should be relatively good with resolution of the underlying triggering events. There are ongoing feelings of anger and frustration regarding his experiences and he may benefit from supportive psychotherapy in this regard. The prognosis for his alcohol abuse is reasonably favourable as well as long as he maintains his aftercare programme. Once again resolution of the ongoing stressor should have a positive effect in this regard.”
In a report from the Plaintiff’s general practitioner, Dr. Daniel McGinley it is reported that the Plaintiff was having significant difficulties in acclimatising back to his home/family situation. There were relationship difficulties when he was released home. He found the situation stressful. No medication was prescribed in relation to this. On the 9th September 1997 the Plaintiff was prescribed anti depressant medication for depression and this was repeated on 15th October 1997 and in November 1997.”
As was pointed out on behalf of the plaintiff in the course of this appeal the principal basis of his claim is under s. 9 of the Criminal Procedure Act, 1993. The relevant parts of that section are as follows:
the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person … unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.
In his judgment the learned High Court Judge noted:
It should however not be overlooked that s. 9 of the Act of 1993 provides, inter alia, for the institution of an action for damages arising out of the quashing of a conviction where the appropriate Court has certified, as has occurred in this case, that a newly discovered fact shows that there has been a miscarriage of justice. It is intended to provide a remedy where it was understood that no remedy existed. Thus it is entirely conceivable that a claim for compensation under s. 9 could arise where there is no other actionable wrong against the State or any other person there being no culpability or blameworthiness on their part. Thus a claim can arise, inter alia, where a conviction was quashed because of the existence of “a fact the significance of which was not appreciated by the convicted person or his advisers during the trial”. I do not think it is necessary to hypothesise by way of example since it is self-evident that such circumstances, and indeed other circumstances envisaged by the section, could arise without actionable culpability on the part of any other person. Thus it is far from the case that every claim brought pursuant to s. 9 would attract aggravated or exemplary damages.
I mention this to emphasise, although it hardly needs emphasis, that there are especially grave features of this case which give rise to the level of damages which I feel it is appropriate to award. In this case the actual or potential other causes of action which the appellant could have pursued for malicious prosecution, unlawful conspiracy and so on became amalgamated in the elements which the High Court took into account when awarding compensatory damages pursuant to s. 9 of the Act of 1993. As the trial Judge himself acknowledged there were “several torts comprised in the claim”.
These special features, which in turn have particular relevance to the quantum of aggravated and exemplary damages, included the malice and dishonesty of the Garda members involved including their concealment of evidence, the abuse of power, conduct calculated to undermine a fair trial, the cruel treatment of the appellant when imprisoned concerning compassionate leave, the physical and psychological effects of imprisonment which were exacerbated by the belief, which was correct, that his conviction and imprisonment had not been brought about by some dreadful error or mistake but by the male fide machinations of the Garda members involved. Coupled with the foregoing, the consequences included degradation of his family circumstances, public degradation in the eyes of the community, at least some of which was engendered by deliberate exploitation of the case for the purposes of publicity and self-advancement by a Garda Officer. The whole course of events changed permanently the course of his life and at an age where, and in circumstances where, even on release or ultimate vindication, it could never return to its normal course to any serious extent. His professional life and standing as an accountant was jeopardised.
Principles applicable to the award of damages
As already pointed out the loss or injury suffered by the plaintiff in this case, physical, moral and financial, were all associated with grievous wrongdoing and male fides on the part of the servants of the State. In these circumstances I am quite satisfied that the principles relating to the award of damages in tort or for breach of a constitutional right as set out by Finlay C.J. in Conway –v- Irish National Teachers Organisation  2 I.R. 305 at 317 are applicable to the assessment of damages in this case. I would add in passing, whether those principles would by analogy be applicable without qualification in a case of compensation pursuant to s. 9 for a miscarriage of justice where there was no other actionable wrong or culpability on the part of another person is not in issue. I do not suggest that it might be. It is just that the question does not arise, there being no serious issue between the parties (apart from one caveat on the part of the State to which I will refer subsequently) that those principles do apply in this case.
In Conway –v- INTO Finlay C.J. stated:
2. Aggravated damages, being compensatory damages increased by reason of
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or
(c) conduct of the wrongdoer and / or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.
On the basis of the principles laid down in Conway –v- INTO (cited above) the two aspects of compensatory damages, general damages and aggravated damages arise for consideration in this case. In his judgment the learned trial Judge having acknowledged that aggravated damages represent, inter alia, a recognition of the cavalier or outrageous conduct of a defendant, went on to exclude the making of an award under the heading of aggravated damages essentially for the following reasons stated in his judgment:
As Finlay C.J. pointed out in the citation above, general damages, or ordinary compensatory damages are sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act. There may indeed be particular aspects of a wrong reflected in the level of ordinary compensatory damages which are closely connected or interwoven with other factors which could give rise to aggravated damages. It could be difficult for a jury or a trial Judge in awarding ordinary compensatory damages not to have regard to the fact that, for example, a deprivation of liberty had been carried out by Garda officers in abuse of the law or in a male fide manipulation of the due process of the law.
However, as the principles referred to make clear, ordinary compensation is designed to compensate the direct effects of the wrong on the person who suffered it.
On the other hand aggravated damages represent an augmentation of the ordinary compensatory damages by reason of the manner in which the wrong was committed, the conduct of the wrongdoer at the time and subsequent to the commission of the wrong or wrongs involved. Aggravated damages have also been described as constituting “… additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the tort is justifiably heightened by the manner in which or the motive for which the defendant did it.” (White, Irish Law of Damages Figure 1. p. 7; Butterworth (Ireland) Ltd. 1989).
In my view where there are clearly identifiable circumstances in a case of this nature which comprise the substantial aggravating factors referred to in the principles in Conway, allowing for the fact that the factors outlined there were not intended to be definitive, then compensation by way of aggravated damages must be included in the award.
A global figure for compensatory damages may well be appropriate where the circumstances of the case indicate that the factors giving rise to aggravated damages are relatively marginal to the substantive wrongs which entitle a plaintiff to ordinary compensatory damages.
Furthermore, in cases which warrant the award of aggravated damages and where the circumstances attenuant to the commission of the wrongs in cause are closely interwoven with the factors which give rise to such damages it may be appropriate to award a global figure for compensatory damages provided the award is expressly stated to include both ordinary and aggravated damages. In a court of trial at first instance it may well be preferable, in the circumstances of the case and in the discretion of the trial Judge, that the awards of ordinary compensatory damages and aggravated damages be separately identified under their respective heads. This would facilitate the review of such awards on appeal.
I think one must accept that in making these awards the distinction between serious elements of the wrong committed and aggravating factors may at times be a very fine one or indeed there may be an overlap. Thus, although ordinary compensatory damages and aggravated compensatory damages may be conceptually distinct it will often be difficult in practice to exclude overlapping elements in the assessment of ordinary compensatory damages to be paid to a plaintiff. The primary compensatory damages are the ordinary damages which may be increased by reason of the aggravating circumstances. For these reasons, and indeed as a matter of general principle, I agree with the submission by counsel for the State that where distinct amounts of damages are being awarded on the basis of both ordinary and aggravated damages the totality of any amounts attributed under these two headings should be considered with a view to ascertaining whether the total sum awarded represents fair compensation for the totality of the injury and loss suffered by the plaintiff. In Reddy –v- Bates  ILRM 197 at 202, in a claim for personal injuries, loss and damage, this Court stated:
The quantum of compensatory damages
First of all I propose to address, in the light of the principles outlined above, the amount which should be awarded by way of compensatory damages to the plaintiff, for the wrongs to which he was subjected, from the date of charge up to the trial in the High Court and having regard to the broad approach, agreed in the High Court, that all such loss would be deemed to be dealt with pursuant to s. 9 of the Act of 1993 by way of compensatory damages.
The facts as found by the learned trial Judge as regards the deprivation of liberty suffered by the plaintiff, the physical and mental distress, anxiety and other harmful effects as a result of the wrongs done to him speak for themselves and do not warrant detailed repitition.
From the time he was first charged with the offences for which he was wrongly convicted up to the time when he was granted his certificate of a miscarriage of justice by the Court of Criminal Appeal the plaintiff lived through a nightmare of kafkaesque proportions which enveloped his entire existence. Everything he stood for, had strived for or aspired to seemed set at nought. It is a nightmare from which he is only relatively recently emerged but he will never escape the full consequences of this dreadful and traumatic period in his life.
While there have been other significant awards for such wrongs as malicious prosecution and wrongful arrest none that I am aware of could be taken as a precedent for this case because the scope and scale of the wrong and suffering to which the plaintiff was subjected in this case extend far beyond any such case that has previously come before the Courts. In the absence of precedent I can understand why the learned trial Judge would have regard to damages awarded in the more serious of defamation cases. However, given that the wrongs and their consequences, physically and morally, suffered by the plaintiff go far beyond, in depth and breadth, those which could be suffered as a result of even the most serious defamation I think this was too limited an approach. The plaintiff suffered loss of liberty with all the ignominy of being condemned as a criminal by the State. His stress and anxiety was exacerbated by the fact that he knew it was done on foot of perjured evidence. He was affectively taunted by the offer of a “deal” to drop his appeal, and thereby publicly acknowledge his guilt in exchange for the prospect of early release and return to his family. His wife and children were tainted and the quality of his family life perhaps permanently affected. Certainly his family life and his relationship with his family were seriously damaged when his children were in their early teens. He will never recover that period of loss and distress. On his release his life has been consumed with establishing his innocence and vindicating his rights.
Hopefully the final conclusion of these proceedings will vindicate his reputation but the whole series of events which he has undergone have permanently changed the course of his life over a period and at an age where, even with these proceedings behind him, it can hardly return to its normal course to any serious extent. I have no doubt, having regard to the evidence, that the horrible traumas of these events is something with which he will always have to live.
I consider it is manifest that the damages which he should be awarded by way of ordinary compensatory damages must be very substantial and in my view he is entitled to general damages far in excess of that awarded in the High Court.
In the light of the facts of the case I am also of the view he is entitled to very substantial aggravated damages having regard to the principles set out in Conway and the considerations to which I have referred to above.
I feel that the appropriate approach in this case is to make a global award that includes ordinary general damages and aggravated damages.
Furthermore, although the plaintiff will never be able to put behind him completely the consequences of what he has gone through, physically and emotionally, I do not consider that there should be a separate assessment of general damages for any ongoing consequences in the future. In a Court of trial separate heads of damages for past and future loss may be appropriate principally to facilitate the review of an award of damages in this Court on appeal. In the circumstances of this case and for the purpose of this appeal I am satisfied that any future aspect of the plaintiff’s damages can be taken into account in the overall award of compensatory damages.
Again the facts and circumstances as found by the learned High Court Judge speak for themselves. The aggravating elements are manifest. The manner in which the wrongs in question were committed against the plaintiff involved an arrogant and oppressive abuse of power by recourse to perjury so as to undermine the due process of the law. This is compounded by the outrageous attempt to close down the plaintiff’s continued challenge to his conviction at a time when he was vulnerable, physically and psychologically, by means the offer of a move to an open prison, early release and the dropping of outstanding charges, the full truth of which we do not know. The two Garda officers concerned persisted in the denial and cover-up of their conspiracy and perjury to the very end, resisting with further perjury, the plaintiff’s final application to the Court of Criminal Appeal. The apology from the State came late in the day before this Court in these proceedings and can in my view have little effect on mitigating damages. On the contrary nothing has emerged which suggested that the State, including the Garda Síochána, were in any way agitated about setting right the wrongs inflicted on the plaintiff, other than finally not contesting liability in these proceedings.
Every wrong and every stage of every wrong suffered by the plaintiff was compounded by aggravating factors. The core element of those factors was the concoction and giving of perjured evidence by the Garda officers. There was a callous self-serving disregard for the plight of the plaintiff, and his family, throughout.
I am therefore wholly satisfied that a very substantial element of the plaintiff’s compensatory damages should comprise a sum for aggravated damages for the outrageous and arrogant manner in which the wrongs were inflicted on him, insofar as money can do it.
In these circumstances I have come to the conclusion that the plaintiff should be awarded the sum of €2,250,000.00 by way of compensatory damages to include aggravated damages.
As Finlay C.J. in Conway –v- INTO stated exemplary or punitive damages “are intended to mark the Court’s particular disapproval of the defendants conduct … [and the Court’s] decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages …”.
In the same case McCarthy J. stated:
In McIntyre –v- Lewis  1 I.R. 121 at 134 Hederman J. stated:
They are also punitive, as the dicta above state. They may financially punish a defendant as a deterrent to that defendant as well as a deterrent generally to the arrogant use or abuse of power. In their purely punitive dimension the means of a defendant may be relevant in order to ensure that the punishment is proportionate. However the purely punitive element of these damages is hardly relevant where the State is the defendant since no individual, let alone those persons who have actually committed the wrong, will bear responsibilty for paying any of the damages. The liability of the State to pay arises from its vicarious responsibility for its servants or agents and the payment of damages is made out of public funds.
This of course does not relieve the State from its liability for such damages (see for example McIntyre –v- Lewis cited above). The award of exemplary damages is, in the words of Finlay C.J. in Conway, “one of the most effective deterent powers which a civil court has: the award of exemplary or punitive damages.” It is a power which must be available to the Court where there is serious abuse of power by or on behalf of the State. Such an award against the State, in appropriate cases, marks the Court’s public disapproval of abuse of power so as to demonstrate that such wrongdoing will not be tolerated. Although in the form of a financial penalty it is in substance also a moral sanction, a mirror to “the proper indignation of the public”. Such damages remind the other organs of State that there is not only a duty to compensate a wronged citizen by way of monetary damages but to take all steps necessary designed to ensure, as far as practicable, that such deliberate abuse of power is not repeated but is prevented.
In awarding exemplary or punitive damages a Court is at large as to the amount which it considers appropriate to express its disapproval and therefore it must exercise any such power with restraint. The amount awarded should be no more than is necessitated to convey in this case, to the State, and the public at large, the level of its disapproval in the light of the gravity of the State’s conduct. In my view this can only be achieved in this case by making a separate and distinct award for exemplary damages.
In the Conway case Finlay C.J. also observed that exemplary damages, as a general principle, “should not be awarded if in the opinion of the Court the amount necessarily payable by the wrongdoer in the form of compensatory damages constituted a sufficient public disapproval of and punishment for the particular form of his wrongdoing.”
In McIntyre –v- Lewis (at 141) O’Flaherty J. stated:
It is also worthy of note that the State altered their position on the issue of exemplary damages. They had argued in the High Court and initially in this Court that where substantial compensatory damages are awarded to a plaintiff any exemplary damages must be of a strictly limited amount since it would involve double compensation. In the course of this appeal they abandoned this approach accepting, quite properly, that exemplary damages are a distinct and separate concept from compensatory damages.
Because of the distinction and for the reasons already outlined exemplary damages cannot be characterised as involving double compensation. Such damages may in a sense constitute a windfall for the plaintiff by reason of the fact that they are not compensatory in nature. The Court’s discretion to award exemplary damages as necessitated by the circumstances of a case is not limited by any so-called risk of double compensation. Certainly, as Finlay C.J. pointed out and I have also acknowledged in this judgment, in certain circumstances the substantial level of compensatory damages may be a factor to be taken into account when the Court is exercising its discretion as to the exemplary damages necessitated by the need to mark its disapproval of the defendants conduct but the notion of double compensation has nothing to do with that.
The statement above of O’Flaherty J. was made in the context of a cautionary approach which he correctly felt the Courts should follow with regard to the award of exemplary damages. However I do not agree that the discretion of the Court in awarding exemplary damages in a case where it otherwise feels it proper to do so should invariably be constrained by a rule that they be a fraction of the compensatory, including aggravated, damages awarded. The discretion of a Court to award exemplary damages in the vindication of rights and as a mark of its disapproval of the conduct of a defendant, should not be constrained in that manner but exercised according to the circumstances of each case even if in many cases the appropriate award of exemplary damages might well be a fraction of the overall compensatory damages.
While generally speaking there was no issue as to the principles to be applied in determining the damages to be awarded to the plaintiff, counsel for the State in this appeal at one point submitted that where outrageous conduct for which exemplary or punitive damges may be awarded is conduct for which the State is only vicariously liable the level of exemplary damages payable by the State should be mitigated or restricted by reason of the vicarious nature of the liability.
It was a somewhat tentative submission or at least not one pursued with great vigour. In any event I do not think it is an argument that requires great scrutiny. As McCarthy J. also said in McIntyre –v- Lewis (cited above), in the context of an award of punitive damages, “If the liability to damages be vicarious, as the employer of the primary tortfeasor, then the liability is for the entire of the damages.” Moreover, the State acts through its servants or agents and its responsibility is only engaged when wrongs are committed by its servants or agents. If counsel’s proposition was correct the Court would be circumscribed in its jurisdiction to award exemplary or punitive damages appropriate for deliberate and outrageous abuse of public powers by servants of the State. The power of the Court to make an award for exemplary or punitive damages was clearly set out in Conway –v- INTO. The statement of McCarthy J. is patently correct. There is no basis in law for limit the liability of the State to pay exemplary damages by reason of the vicarious nature of its liability. To do so would be absurd and contrary to the well-established principles and purpose of such damages. Indeed in exercising its consitutional function to defend and vindicate the rights of individuals the power of the Court to award exemplary or punitive damages against the State in appropriate circumstances is, as the decisions of this Court demonstrate, of fundamental importance.
The quantum of exemplary damages
Not every aggravated or even malicious breach of rights requires an award of exemplary damages. They are not damages to which a plaintiff is entitled to as a claim of right. It is in principle a matter for the trial Judge in the first instance to determine, in the exercise of his discretion, whether an award of exemplary damages is necessitated by the special need to achieve or provide for the purposes which exemplary or punitive damages serve, as outlined above. Not every case of grave or aggravated breach of rights will necessitate such damages.
I consider that the grounds for awarding substantial exemplary damages in this case are compelling. Those grounds hardly need further elaboration involving as they did the undermining of the due process of law and inveigling, with perjured evidence, a jury of citizens, faithfully doing their duty, to convict an innocent man. They have also undermined the reputation of an important State body, An Garda Síochána. On a number of occasions I have referred above to the especially grave features of the acts committed by the Garda members in this case. Indeed the case is such an exceptional, egregious one that so manifestly calls for such an award that it is not a case in which is in any sense borderline or one which required any finer points of law concerning the liability to award such damages to be argued. Although I agree with the views of McCarthy J. in McIntyre -v- Lewis, that the restriction of exemplary damages to certain categories of cases as stated by Lord Devlin in Rookes –v- Barnard  AC 1129 has no application in our law, that question does not need to be addressed in this case, if it needs to be further addressed at all. Here we have conduct particularly necessitating condemnation.
In all the circumstances of the case I am quite satisfied that a very substantial award of exemplary or punitive damages is warranted against the defendants. In my view it should be in the amount of €1,000,000.00.
The quantum of special damages
The plaintiff’s claim to financial loss focused on loss of earnings from the Point Inn and the loss of capital value of the Point Inn and the capital value of the caravan park, which is the site across the road from the Point Inn for which the plaintiff had obtained planning permission for its development as a caravan park.
The plaintiff’s claims for special damages were not straightforward ones for the learned trial Judge to evaluate because of the state of the evidence and a number of imponderables to which it gave rise.
In the High Court there was at first an issue between the plaintiff and the defendants concerning a causal link between the circumstances in which the plaintiff was prosecuted, convicted and imprisoned and some of these financial losses. The learned High Court Judge resolved that issue by concluding that the plaintiff had established a causal nexus between the events of which he complained and the closing of the Point Inn, the fire there and its sale together with the caravan park by the receiver. The reasons for his conclusions are set out in his judgment and the liability of the defendants for the financial loss as found by the learned trial Judge is not challenged by them in this appeal.
What is put in issue by the plaintiff is the amount of the damages awarded by the learned trial Judge for (a) loss of net tax profits at the Point Inn, for which he awarded €550,000.00 and (b) capital loss of the Point Inn and caravan park for which he awarded a net sum of €806,221.00. A sum awarded for €12,650.00 legal fees is not in issue.
As regards loss of earnings from the Point Inn, or as it was put in evidence the loss of profits net of tax from it, the learned trial Judge found that the accountant, Mr. Peelo, who gave evidence for the plaintiff and the accountant, Mr. Jackson, who gave evidence for the defendant were effectively ad idem as regards the loss of profits up to March 2003, the claim for loss of profits from the caravan park having been abandoned. Having evaluated the evidence before him the learned trial Judge ascribed a total of €550,000.00 under this head of damage allowing for damages up to the date of trial. I do not consider that the plaintiff has established that there was any error in the manner in which the learned trial Judge arrived at this figure. Loss of future earnings did not arise because of the plaintiff’s claim for capital value of the loss of the Point Inn and the caravan park.
As regards the capital value of the caravan park the plaintiff’s valuer, Mr. Younge, initially placed a value of €400,000.00 which he revised upwards to €560,000.00 on the basis of comparisons which he made with other caravan parks which had been sold in different parts of the country. The learned trial Judge accepted the evidence that the plaintiff’s site was less attractive than the sites with which comparisons were made. He also had to take account of the fact that those other sites were sold in a developed state and he had no satisfactory evidence of the current cost of developing the plaintiff’s site. He decided to discount the approach adopted by the defendants’ valuer, Mr. Morrissey, essentially because the evidence required to carry out a valuation exercise based on such an approach was not before him. Accordingly he adopted the approach of Mr. Younge but discounted his valuation for failing to take sufficiently into account the differences between the plaintiff’s site and the comparator sites. He also took into account the fact that any valuation of the caravan park would be influenced by the cost of development at then current figures and he had no evidence of this. On that basis he attributed a value of €350,000.00 to the caravan park. On the facts found by the trial Judge he was entitled to come to this valuation and I find no grounds for interfering with it.
As regards the valuation for the Point Inn he was critical of Mr. Younge’s valuation of €1,150,000.00 because the valuer was misinformed as regards the number of nights per week which the discotheque operated and that was an important element in his valuation.
The defendants’ valuer, Mr. Morrissey, had approached the valuation of the Point Inn on a different basis, concentrating on turnover. The trial Judge was in turn critical of this valuation, in particular because it did not take into account any potential for the premises and also because it took into account the stigma attached to the premises by reason of its licensing history, that is to say, the two endorsements on the license and the objection to the renewal of the pending licensing application. He concluded that since prospective purchasers had an assurance that an objection renewal would not be maintained against a new owner neither of the latter considerations were likely to affect a purchaser. Mr. Morrissey’s valuation was €630,000.00. The learned trial Judge therefore decided that he should make some adjustment to the approach of each valuer. He identified the factors which he took into account in doing so and those which he excluded and in particular gave preference essentially the approach of Mr. Morrissey based on turnover with some adjustments because of factors which the valuer ought not to have taken into account and his failure to take into account of potential. On this basis he arrived at a figure of €700,000.00 for the Point Inn. The plaintiff has complained that not enough was allowed for the potential development of the Inn but the trial Judge’s approach to this element was entirely justified by the evidence.
This gave a total value of the Point Inn and the caravan park of €1,050,000.00 from which certain figures fell to be deducted. These figures related to the proceeds of the malicious injury claim made by the plaintiff, the repayment of the grant to the International Fund for Ireland and payments made to the plaintiff’s creditors. I do not think any criticism can be made in respect of these deductions. This left a net loss of €806,221.00 in respect of the Point Inn and the caravan park for which the plaintiff was entitled to be compensated.
In assessing the plaintiff’s losses for loss of profits at €550,000.00 and his loss in respect of the Point Inn and the caravan park at €806,221.00 the learned trial Judge relied on facts which he was entitled to find on the basis of the evidence before him. Insofar as he relied on inferences drawn from those facts I am also satisfied that those inferences were reasonable and correct.
Accordingly the plaintiff’s appeal against the learned trial Judge’s findings in relation to special damages fails.
General damages for events prior to 1st October, 1992
This head of damage, described as damages at common law by the learned trial Judge, is confined to the period from 18th April, 1992 until 1st October, 1992 the latter being the date deemed by the learned trial Judge to be the one on which charges were brought against the plaintiff. The assessment of all other damages related to matters which occurred after 1st October, 1992 and were dealt with as falling within the ambit of the plaintiff’s claim pursuant to s. 9 of the Act of 1993.
Under this heading the learned trial Judge awarded the sum of €5,000.00 damages to the plaintiff and those damages relate to the plaintiff’s claim for alleged wrongful conduct on the part of the defendants, their servants or agents, in connection with the searched and raids on the Point Inn by the Gardaí as well as the roadblocks on the main road from Derry to the Point Inn on a number of occasions, all of which the plaintiff claimed damaged his business. The claim for damages under this head included damages for physical damage done to the plaintiff’s premises in the conducting of searches.
As was the case in relation to other heads of damage the findings of fact necessary to determine the issue as to damages is primarily a matter for the trial Judge having regard to the evidence before him.
As regards the conduct of the Gardaí in relation to the roadblocks, searches and raids of the plaintiff’s premises complained of, the learned trial Judge concluded that he was not satisfied, on the evidence before him, that the Garda operations were an abuse of powers or motivated by any improper purpose. He took into account the fact that subsequent events might suggest an improper purpose and he was perfectly entitled, in his evaluation of the evidence before him, to conclude, as he did, that the plaintiff had not discharged the onus of proof in relation to these matters. He did however conclude that the breaking of some furniture on the plaintiff’s premises during the course of a raid and the breaking down of an emergency exit door was wrongful and could not reasonably be considered incidental to the powers conferred on the Gardaí by a search warrant. In the absence of any evidence being tendered as to the actual loss sustained by reason of the property being damaged his assessment of €5,000.00 under this head seems to me entirely reasonable. I would uphold that finding.
In conclusion I would allow the appeal of the plaintiff on the issue of damages and find that the damages to which he is entitled to recover from the defendants may be summarised as follows:
4. Special damages :
a. Legal Fees €12,650.00
b. Loss of profits at Point Inn €550,000.00
c. Loss of Point Inn and caravan Park €806,221.00
Accordingly I would allow the appeal and substitute an award of a total of €4,623,871.00 to the plaintiff against the defendants.
This is a most serious, tragic and alarming case. It has been before the Courts now, in one form or another, for nearly fourteen years. The plaintiff/appellant Mr. Francis Shortt was framed by gardaí on drug offences in 1995, and given a three year sentence. His life was almost totally ruined and he was reduced to a state of despair. At that nadir of his fortunes he found the strength to reject an offer of early release, on the condition that he dropped his appeal and thereby acknowledged his guilt: the Court has heard no explanation of how, why and on whose authority this offer came to be made to him. He lost his first appeal. After a long struggle, conducted by dedicated legal advisers, the prosecution quite suddenly, and without any substantive explanation, consented to his conviction being quashed, in November 2000, some years after his release. After another interval of years, in July 2002, he succeeded after a long hearing in having the conviction declared a miscarriage of justice: his application for this declaration was opposed with perjured evidence by gardaí. The Court is now concerned with the question of compensation for the plaintiff, the victim of what the authorities conceded on this appeal was the worst known example of oppression of a citizen by the State.
This is Mr. Shortt’s appeal from the assessment of damages by the learned President of the High Court. It is necessary, before addressing the question of compensation, to survey the facts of the case and their consequences.
On the 17th of May, 2006, the second and final day of the hearing of this appeal, leading counsel for the defendants Mr. Michael Cush S.C. resumed his submissions with the announcement that he would be saying, as he aptly put it, “something by way of apology to Mr. Shortt”. At the conclusion of his submissions he said that he wished to:
This apology was tendered some fourteen years after the start of the chain of events which led to Mr. Shortt being wrongfully convicted of drug offences on the basis of consciously false garda evidence, eleven years after he was sentenced, five and a half years after his conviction was quashed by the consent of the Director of Public Prosecutions, and just under four years after the declaration by the Court of Criminal Appeal that his conviction was a miscarriage of justice. The apology was both belated and limited in the sense that no apology of any kind was offered until the surprise of the Court at its absence was made clear the previous day. The apology is carefully drafted, does not refer to Mr. Shortt’s innocence, and does not purport to be offered on behalf of An Garda Síochána. The plaintiff accepted it, in words both dignified and pointed, “in the spirit in which it was offered”.
The reading of this apology was (apart from the judgment of the Court) the last act in an extraordinary fourteen year history which saw Mr. Shortt, then a 60 year old Chartered Accountant and business man, and the father of five children then aged from 12 to 22, perjured into prison by gardaí. They seem to have borne him no personal ill will: they did it for the purpose of furthering their own careers, and in particular that of their commander and mentor Inspector, later Superintendent, Kevin Lennon. Lennon inspired the perjury and gave it a form and coherence which his principal coadjutor, Detective Garda Noel McMahon, was himself incapable of achieving.
PART IThe set up.
What the Gardaí did and how it came to light.
On the 31st July, 2002, the Court of Criminal Appeal gave judgment in Mr. Shortt’s application to have his conviction deemed a miscarriage of justice. This application was hotly contested by the gardaí most directly involved and required seventeen days of oral hearing before the Court of Criminal Appeal. In the judgment of that Court there is set out in very considerable detail the precise working of the conspiracy between certain gardai to frame Mr. Shortt, the subsequent steps taken to prevent this coming to light, and later again to prevent the conviction being deemed a miscarriage of justice. The judgment is long, running in its original form to 117 of typescript excluding Appendices. It is reported at  2 I.R. 686. It is unfortunate, for present purposes, that the editors of the official Reports, in an attempt to save space, drastically edited the factual portions of the judgment, focussing mainly on the legal issues involved. I do not say that by way of criticism: the concern of the Irish Reports is with legal issues. But it means that there is no printed record of the detailed findings of the Court of Criminal Appeal in this uniquely grave case. It would be wasteful to set out here precisely the same material as is set out in the Court of Criminal Appeal judgment. I propose to offer only a brief summary. However, the judgment of the Court of Criminal Appeal and the various appendices to it are available in the office of that Court. I wish to emphasise that no-one can hope to form a full and complete view of the conspiracy deployed against Mr. Shortt without reading that judgment in full.
Having said that, I will attempt to summarise what occurred as follows:
The Point Inn premises were closed for renovations after the death of Mr. Shortt’s brother in 1991 and reopened on the 18th April, 1992. Almost immediately, it became clear that a problem existed with drug dealing in the premises, in particular the presence of drug dealers from Northern Ireland. This problem was acknowledged both by the gardaí and by Mr. Shortt and was the subject of considerable discussion, oral and written, between them. Eventually it was decided to address this problem by putting undercover gardaí into the premises at weekends over a period of some months. Noel McMahon was always present in an undercover capacity; Garda Tina Fowley was present on all but one such occasion. It was agreed at the trial that the topic of undercover gardaí had been discussed between Mr. Shortt and Superintendent Brian Kenny. Mr. Shortt said he was aware from this discussion that there would be undercover gardaí in the premises whereas Superintendent Kenny, agreeing that the matter had been discussed, said that he had not committed himself on this point. As will be seen, Mr. Shortt’s account of this matter received some unexpected support long after the trial.
Subsequent to a major raid on the premises in August, 1992, the gardaí charged Mr. Shortt with multiple charges of permitting his premises to be used for the sale of drugs on that and other occasions. Despite the large number of charges, when the case came to the District Court there was (according to McMahon) a “semi-deal” available to Mr. Shortt whereby he would be allowed to plead guilty to one charge and the matter would be dealt with by way of a fine. Mr. Shortt did not avail of this offer. It was then decided to have the matter dealt with on indictment in the Circuit Court. Mr. Shortt at all times protested his innocence of the charges in question. When a Book of Evidence was eventually produced it turned out that the case against him was very weak indeed, almost non-existent: on the hearing before the Court of Criminal Appeal counsel for the State conceded that there was then insufficient evidence to put Mr. Shortt on trial “on the statements”.
A vital development then occurred. Papers were sent to counsel to advise Proofs. Before a written advice was drafted, there was a lengthy meeting between State counsel and various gardaí in the Lake of Shadows Hotel near Buncranna. When counsel’s Advice of Proofs was received it pointed to the fact that the evidence in the garda statements was grossly inadequate to support the charges. As counsel said, the evidence available from the garda statements clearly established that drug dealing was taking place on the premises but it did not establish that Mr. Shortt was in any way involved in or tolerant of this. Portions of the evidence, indeed, were open to the construction that he was not aware of it. In so advising, counsel was doing no more than her duty to her client, the Director of Public Prosecutions.
This Advice of Proofs came to hand in September, 1994. It presented the gardaí with an acute dilemma: a trial date had been fixed for October, 1994, and here was State counsel telling them that, on the Book of Evidence, they had no case. Certain gardaí then engaged in a conspiracy to transform a very weak case into a very strong one by inventing evidence. This was done cleverly and cold bloodedly, in a manner fully described in the judgment of the Court of Criminal Appeal.
The result of this conspiracy emerges clearly in the judgment of the Court of Criminal Appeal. It can be seen very easily, simply by comparing the original statements of McMahon and Fowley with their subsequent statements, served as additional evidence. The judgment of the Court of Criminal Appeal contains a tabular summary tracing the changes in the Garda account contained in the original contemporary notes (concealed at the trial) through the initial statements to their eventual additional evidence. It is noteworthy that the statements of McMahon and of Fowley were altered in a very similar way.
This, however, was not easily done. Although one would have thought it perfectly plain from the Advice of Proofs what the shortcomings in McMahon’s evidence were, he found it difficult to come up with a new statement which would support the prosecution case. Accordingly, he brought his statement to a meeting with Lennon in a garda station. Lennon took the statement and, in his own handwriting, indicated the necessary alterations. Some of his instructions are in unambiguous terms such as “Where is Shortt - say he was nearby”.
The statement of McMahon annotated by Lennon is an appendix to the judgment of the Court of Criminal Appeal.
Even with this fools guide, in Lennon’s handwriting on McMahon’s statement, the latter had serious difficulty in producing an acceptable version to be served as additional evidence. His eventual statement of additional evidence was produced not in a garda station but at a meeting in his own home attended by himself, Garda Fowley, another guard who did the typing and, for part of the time Inspector Lennon. He was called to the meeting because of a grave and unexpected difficulty which had arisen. The gardaí had told State counsel when they met her that on each occasion they were present undercover in the Point Inn the water supply had been turned off. The effect of this was to force customers, if they wanted water, to buy it from the bar. It is a recognised effect of the consumption of “speed” that it makes the consumer extremely thirsty. McMahon’s statement had several references to seeing large quantities of glasses of tap water being sold over the bar. The problem which arose was that in the statement of Garda Tina Fowley she described following a girl in to the ladies toilet and seeing her splitting a white tablet. The girl then “put one half into her mouth and washed it down with a drink of water from the wash basin”. If this was so then the detailed allegation the Gardaí made to State Counsel, recorded in the Advice of Proofs, was false.
Arising from the inconsistency between this statement and the allegation to counsel that the water had always been turned off it was decided simply not to pursue the latter allegation any further than they already had. This was done even though it had featured quite heavily in Lennon’s original plan: on the first page of McMahon’s statement he had written “You have to say that you drank numerous half pints of water from the [illegible] section of the bar. Who was filling the glasses of water from behind the bar etc.”.
The case then proceeded with McMahon and Fowley giving evidence in accordance with their new statements. The importance of their evidence is undisputed: the learned trial judge in the Circuit Court (His Honour Judge Buchanan) described McMahon’s evidence as the nub of the prosecution case, and so it was. McMahon was naturally cross-examined on how his first statement, which revealed no case at all against Mr. Shortt, had mutated into a second, which revealed a strong one. He claimed that the new version was the unaided product of his own memory. Asked what materials he used in writing his second statement he perjured himself by concealing the existence of his original notes which did not at all incriminate Mr. Shortt.
Mr. Shortt was then convicted and sentenced to three years imprisonment. His conviction related to thirteen only of the counts against him: the rest were held over. Later, when he was offered early release if he dropped his appeal, a further inducement held out to him was that these additional counts would be dropped. He was at that stage in fear that they would be proceeded with and he would receive a longer sentence.
It must be emphasised that the foregoing is the barest summary of the main findings of the Court of Criminal Appeal in relation to the framing of Mr. Shortt. There was also evidence that McMahon arranged with a woman who was an established garda informant to attend on the night of the raid in August, 1992, and plant drugs on the premises. In fact, she got drunk and did not turn up. Furthermore, McMahon alleged that he had bought drugs from a named person using marked sterling currency. This person was then arrested but the currency could not be found in the property store in Buncranna Garda Station when inquiries were later made, and it turned out that the custody record in relation to the person had been torn out of a bound book at the garda station. This, of course, would have shown what property he had on him on arrival there. Despite the allegation of widespread drug dealing, no person appears to have been convicted of such an offence in relation to the evening of the raid. I reiterate the necessity for anyone wishing to understand in detail what happened to Mr. Shortt to read the judgment of the Court of Criminal Appeal.
The consequences of these things to Mr. Francis (Frank) Shortt, were nothing less than life blighting. He suffered imprisonment for three years, less only statutory remission, his business and his reputation were ruined, his health suffered and his private and family life were severely affected. He was driven into a state of despair and for a period endured a dark night of the soul. His premises were burnt down by the I.R.A. He suffered intense feelings of shame and powerlessness, aggravated by his school going children being pilloried as the children of a drug dealer and by his wife, whom he had always supported appropriately, being compelled to apply for a social welfare allowance for the wives of prisoners. When, having served the sentence and suffered all the other consequences, he endeavoured to have his conviction declared a miscarriage of justice, he was opposed with further perjured evidence by members of An Garda Síochána, including the Superintendent. While the direct cause of these grotesque injustices was a conspiracy between a small number of members of An Garda Síochána, the attitude of the garda and prosecuting authorities was, to say the least of it, a grudging and insensitive one as will be seen.
The circumstances of this case, and the fact that the perpetrators of the grave wrong committed against Mr. Shortt were persons wearing the uniform of the State, aggravate the wrong done to him and give the affair a public as well as a private dimension. It is now possible to be categorical as to how this injustice was perpetrated: the details are set in the judgment of the Court of Criminal Appeal, and make for profoundly disturbing reading. Further details of the actions and attitudes of the State authorities, specifically the prosecution service and the Garda Síochána in the period 1992 - 1997 came to light on the hearing of this appeal and are discussed below. On the hearing of Mr. Shortt’s application for compensation the case he made was not contradicted in any way by those authorities and was accepted by the learned President.
Matters still unexplained.
But there are significant aspects of the case which are still unexplained. These include how it came about that Mr. Shortt was returned for trial on serious criminal charges, at the suit of the Director of Public Prosecutions, even though it was conceded in the Court of Criminal Appeal that there was then no sufficient case against him on the documents which had been produced; how, despite this state of affairs, Mr. Short was offered a “semi-deal” whereby the bulk of the charges would be dropped if he pleaded guilty to a single charge, with only minor consequences; how no alarm bells were set ringing by the sudden transformation of a very weak case into a very strong one by new statements from two members of An Garda Síochána containing material which they had inexplicably said nothing about until shortly before a trial date was fixed; how, while unjustly imprisoned, Mr. Shortt was offered various benefits, including early release, if he would drop his appeal and how a very important allegation of an admission of perjury by one of the gardaí involved, from a credible source, apparently escaped the attention of senior gardaí and prosecuting authorities for a considerable time. They did nothing about it. But the D.P.P., while unaware of this important evidence, nonetheless consented to the conviction being quashed, for reasons yet to emerge.
Not the least alarming aspect of the case, touched on above, is that Mr. Shortt was framed by gardaí who, on all the evidence, bore him at first no personal ill, will simply in pursuit of an unscrupulous scheme to advance their careers, and in particular that of Superintendent Kevin Lennon. It was he who orchestrated the conspiracy to make a false case against Mr. Shortt and he had as his willing coadjutor Detective Garda Noel McMahon and perhaps another member. Each of the relevant gardaí was absolutely indifferent to the commission of perjury. McMahon, almost incredibly, at one point during his evidence in the Court of Criminal Appeal blamed, not himself or his superior, but Mr. Shortt’s original legal advisers for the sentence which he received:
Admission of perjury drops out of sight.
Another major theme in the judgment of the Court of Criminal Appeal was the evidence of Mrs. Sheenagh McMahon which, for the reasons set out in that judgment, the Court accepted as truthful and very largely accurate. A very significant part of her evidence related to admissions to perjury made to her by Detective Garda McMahon. This evidence is important for three quite separate reasons.
In evidence to the Court of Criminal Appeal Mrs. McMahon said that Detective Garda McMahon was “upset in front of me about Mr. Shortt, his conviction, he didn’t think that Mr. Shortt was going to get three years… I don’t think that he was upset about the fact he was convicted, but he was definitely upset at the fact that he was put in jail for three years… he said he didn’t expect him to get three years.” She also said that Detective Garda McMahon had said “… that it was his evidence that convicted Francis Shortt and without his evidence Francis Shortt wouldn’t have went to jail” (sic). She was asked whether the Detective Garda had said anything else, whereupon she paused and said “He told me that he had perjured himself in court… and that he had done it for Kevin Lennon to help him get promotion”.
This was clearly very significant evidence. The Court of Criminal Appeal was, however, constrained to treat it with great caution because the witness was the estranged wife of the Detective Garda and she appeared to be giving this account for the first time in the Court of Criminal Appeal, although she had been extensively interviewed by the Gardaí as part of Assistant Commissioner Carty’s Inquiry. She was questioned about this both by counsel and by the Court. She stoutly denied that she was saying it for the first time and maintained in the face of scepticism from counsel and the Court that she had given the same information to the Carty Inquiry. The Court, and the parties to the miscarriage of justice application had been given what was represented to be all the relevant papers from this Inquiry and there was no mention, direct or indirect, of this very significant allegation being made by Mrs. McMahon. But she appeared absolutely certain in court that she had made this allegation to Carty. The Court specifically asked counsel for the respondent:
Counsel for the Director of Public Prosecutions, who was fully alive to the importance of the matter replied:
Most unfortunately and embarrassingly, it transpired that counsel’s instructions were grossly deficient. Later in the day a separate memorandum of an interview with Mrs. McMahon was found and, in the words of counsel for the State:
It transpired, precisely as Mrs. McMahon had said, the garda officers conducting the Inquiry had indeed decided that the allegation of perjury and cognate matters should be put into a separate document. The consequences of this for the present case are indeed very great. What she said was recorded in a separate memorandum of interview of the 15th September, 2000; as follows:
There is then a sentence which is difficult to believe that anyone concerned about policing matters in Donegal could have forgotten:
If it is reliable, and the Court of Criminal Appeal has found that it was, it is evidence of an absolutely unique kind: an admission by a Detective Garda of premeditated perjury in an important criminal case.
Secondly, Mrs. McMahon’s credibility was greatly boosted by the fact that her account of having told the Carty Inquiry about the admission of perjury, and her persistence in this account in the face of manifest scepticism from the Court and from counsel for the authorities, was vindicated by the sudden production of the memorandum. It must have appeared to Mrs. McMahon that the authorities had deliberately decided to “bury” her account of September, 2000, and to deny that she had ever said anything of the sort. But she did not waiver in her account.
Thirdly, while the Court of Criminal Appeal for reasons set out in its judgment found that neither the garda authorities nor the Director of Public Prosecutions had deliberately concealed the memorandum, the fact that it was forgotten about and never acted upon is gravely disturbing. It should be said that Mrs. McMahon gave the account set out above to the gardaí only two months before the Director of Public Prosecutions consented to Mr. Shortt’s conviction being quashed. Nevertheless, counsel for the Director told the Court of Criminal Appeal that her account had not influenced the Director’s decision because, though he had received the memorandum, he had not read it at the time he took the decision to consent to the conviction being quashed. This, in turn, means that the Director had formed the view that the conviction was unsafe or unsatisfactory on grounds unrelated to the Detective Garda’s confession to perjury. The Court has no idea what these grounds were.
Apart from that, it is very surprising, to say the least, that so dramatic an allegation was not followed up. It was the gardaí who insisted that Mrs. McMahon’s account of the admission to perjury should not form part of her main statement but be separately recorded. This, presumably, was because of its sensitivity. But it had the consequence that the perjury allegation simply dropped out of sight. It did not form part of her principal statement, or of the edited version of that statement which was given to the Court and to Mr. Shortt’s advisers. It must surely have been communicated to the very highest levels of An Garda Síochána but nothing was done about it.
So thoroughly did this vital piece of information drop out of sight that solicitor and counsel for the authorities, at a hearing specifically directed to the question of whether Mr. Shortt’s conviction was a miscarriage of justice, were never told about it by the gardaí. These professional advisers were thus placed in a position of very great embarrassment without any fault on their part. It is only fair to add that, after this catastrophe, solicitor and counsel for the authorities placed the whole product of the Carty Inquiry before the Court of Criminal Appeal. This had the incidental effect that that Court could see the enormity of the task undertaken by Mr. Shortt’s legal advisers in trawling through documents running to many thousands of pages a considerable number of which were neither indexed nor paginated.
The Court can only regard the circumstances whereby Mrs. McMahon’s allegation simply dropped out of sight as indicative of grave insensitivity on the part of the authorities, an inexplicable failure to investigate the most relevant and serious allegation and a reluctance to contemplate the appalling prospect that Mr. Shortt had indeed been the victim of a campaign of perjury by gardaí. Even when the documentary evidence mentioned below came to light, the alleged confession to perjury remained uninvestigated.
Chance and Coincidence.
To conclude this survey of the case, attention must be drawn to the large element of chance and coincidence involved in the eventual vindication of Mr. Shortt. One of the gardaí involved, McMahon, was a man who drank to gross excess and when drunk and maudlin confessed his perjury to two of the witnesses who gave evidence in the Court of Criminal Appeal. Secondly, McMahon’s drinking problem, in the years following the Shortt case, made him into a “loose canon” from the point of view of his colleagues and superiors. There was, for example, a serious incident where he pointed a gun at another guard. But of more relevance to the present case was the fact that, according to Superintendent Lennon himself, a Sergeant in the Donegal Division, Sergeant Leheny, expressly threatened to destroy Lennon’s career on the basis of information which he claimed McMahon would supply when drunk. This extraordinary fact led to the creation of certain contemporary documents discussed below. Thirdly, there was something of a falling out between McMahon and Lennon over an apparently trivial cause: Lennon successfully nominated himself for a Divisional policing award wholly or mainly on the basis of the Shortt case: and McMahon bitterly resented this as he felt he should have had the award himself. Fourthly, the ill-feeling engendered by this dispute led Lennon to think that McMahon might make allegations against him and caused him to get McMahon to write a remarkable “letter of satisfaction” which is fully discussed in the judgment of the Court of Criminal Appeal. The same dispute and its consequences led McMahon to keep certain documents of a highly incriminating nature which he might otherwise have destroyed, including one clearly showing Lennon’s role in procuring the alteration of the garda evidence prior to the trial. McMahon kept this material because, in his own words used in a handwritten aide memoire to himself, he was afraid that “Lennon [was] shafting me”.
The fact that these incriminating documents were preserved, precisely because they were obviously incriminating, by an experienced Detective Garda who fully understood their significance is one of the most remarkable features of a case with many extraordinary features. The documents themselves include:
(1) A group of “half sheets” being individual pieces of paper on which McMahon had written his original notes of his undercover activities in the Point Inn. The significance of them for present purposes is that they do not at all incriminate Mr. Shortt. They were concealed at the trial even in answer to a direct
involved revealing their existence.
in Lennon’s handwriting showing how he was to be
incriminated in the second statement.
“Point Inn - perjury - set up - advice of proofs -
Kevin Lennon had my note book”.
Court of Criminal Appeal this recorded what
Lennon told McMahon were the allegations
Sergeant Leheny was making against him, Lennon. They led to the ‘Letters of Satisfaction’ discussed below. Matters mentioned included an allegation about Lennon’s personal life, “Point Inn etc. etc.” and ‘Lennon shafting me’.
to Lennon himself by McMahon and the other
envisaging it being sent to Sergeant Leheny. Each
is an endorsement of Lennon’s character by McMahon and there is
a specific reference to the fact that McMahon had
never known Lennon “act illegally while
participating in any operation”.
They are very remarkable documents indeed and are Appendices to the judgment of the Court of Criminal Appeal. The first version was drafted by McMahon and the second by Lennon.
I stress, once more, that the judgment of the Court of Criminal Appeal is essential for an understanding of these documents.
Mrs. Sheenagh McMahon said that her husband had shown the “Letters of Satisfaction”, and in particular Lennon’s draft, to her and “said to me that this was the biggest mistake that Kevin Lennon made, and he said that that piece of paper was so important to him… he said he would never let that out of his hands”. McMahon and Lennon each knew that the other was a wholly unscrupulous person with no regard whatever for the oath or for the truth. Lennon agreed that he had got McMahon to write the “Letters of Satisfaction” as “insurance”. McMahon kept these incriminating documents because they incriminated Lennon as well as himself, so that if Lennon “shafted” him, he would be destroying himself as well. He hoped that this prospect would prevent Lennon “shafting” him.
It is essential to recall, though incriminating material about the set-up was preserved for the reasons mentioned above, it might never have come to light but for more widespread concerns about the activities of certain gardaí in Donegal. These are now notorious due to the reports of the Morris Tribunal and they had previous led to a high level garda inquiry. The Shortt case was only a very small part of that inquiry but the inquiry led to the Carthy team taking possession of the documents retained by McMahon. It also led to the first coming to notice of third party evidence to the effect that McMahon had perjured himself in Mr. Shortt’s case: most unfortunately this appears to have been lost sight of for a considerable time.
It is important to note that the remarkable gravity of the case has now been recognised by all who dealt with it. The learned President described what had happened as “an outrageous abuse of power”. Counsel for the State on the hearing of the appeal said that Mr. Shortt’s case was the worst case of State oppression of a citizen of which the State defendants were aware. The consequences to Mr. Francis Shortt were appalling and cry out for vindication. Even apart from the outrageous damage to that unfortunate man, there must be grave public concern at the garda conspiracy against an innocent man and the calculated, fluent and plausible perjury which the gardaí engaged in, with total indifference to humanity or justice.
PART IIA change in the State’s position.
Submissions on damages.
It must first be said that the State’s case as eventually argued in this Court was, on the very significant topic of exemplary damages, very different from that advanced before the learned President in the High Court. The State had contended that no award, or only a very limited award, should be made in respect of exemplary damages by reason of the size of the compensatory damages awarded and the risks of double compensation. In other words, the State had contended that a significant part, or perhaps the whole, of what is normally reflected under the heading of exemplary damages (where the question of exemplary damages arises at all) should be regarded as having been already covered by the awards under the heading of general damages. This submission found favour with the President who justified the award he made by remarking that he “must be conscious of double compensation”.
On the hearing of this appeal Mr. Michael Cush S.C. in the course of argument very properly withdrew this contention. It was proper to do this because damages awarded under this heading are different in kind from, and do not at all overlap with, general damages. This topic is fully discussed below. But since the Court is making a significant alteration in the damages awarded by the High Court, it is fair to point out that the difference is to a large degree accounted for by this change in the State’s attitude to a very important component of the compensation. The Court is quite satisfied that the State’s current approach is based on a correct assessment of the law on this topic.
The damages awarded by the learned President were all the subject of appeal to this Court. They were as follows:
Apart from the challenges to the special damages, which will be dealt with later, it was said that the sum of €500,000 for general damages was gravely inadequate. The award of €50,000 for exemplary damages was very small in the circumstances “extraordinarily so: it ought to be very very much expanded”. Exception was taken to the decision of the learned President not to award aggravated damages as a separate head of damages. Finally, there was a challenge to the award of €5,000 in respect of the claim for events from April, 1992, to the date on which the plaintiff was charged.
Submissions on Damages: the plaintiff’s case.
In relation to the sum of €500,000, Mr. Hugh Mohan S.C. for the plaintiff stressed the long period of time which this award had to cover. He said that the plaintiff had clearly “ticked all the boxes” for a very large award of general damages in respect of events which had gone on for a long time and said that the many different types of damage required detailed attention. The first and most important of these, counsel submitted, was the 27 months spent in jail. He emphasised the dreadful effect it had on the plaintiff as set out in his own evidence and that of his wife. Immediately upon conviction he was handcuffed, chained to a prison officer and removed to prison in a blaze of publicity. He spent two separate periods of twelve weeks in Mountjoy prison in terrible conditions and at times in the company of persons of whom he credibly alleged he was constantly frightened. Counsel stressed the effect of this in particular on a man over sixty years of age with no previous convictions and no previous exposure to the criminal elements with whom he was confronted in prison. In making these submissions counsel was able to refer to a prison diary kept by the plaintiff: it is not my intention to set out here extracts from what was a private document kept in part to preserve his sanity in the circumstances in which he found himself. But there can be no doubt that he suffered despair and extreme mental anguish. In the words of a medical report from a consultant retained by the defendants, he had inflicted on him “ongoing, relentless and continuing stress as a result of the events before during and after his trial”. Counsel referred to this doctor’s conclusion that it was “highly probable that the events from 1993 onwards contributed appreciably to a heart condition”. As mentioned above, the evidence of Mr. Shortt and his wife was not contradicted. Counsel particularly emphasised Mrs. Shortt’s evidence that her husband quite suddenly became an old man, and at times resembled “a zombie”.
Counsel emphasised certain other incidents of the imprisonment. It was undisputed that the plaintiff had been denied temporary release on at least fourteen occasions even though this privilege was accorded to people who he knew in prison who had been convicted of what appeared to be much more serious crimes. There was equally no contradiction of the plaintiff’s evidence as to what he had been told by way of explanation of this: his application had to go to the local Garda Superintendent, who was Superintendent Lennon, and that it was to be inferred that he had simply frustrated these applications. These refusals induced depression in the plaintiff for which he was prescribed medication at particularly bad moments, when, for example, he was refused temporary release on the birth of his first grandchild and refused again when his wife had to go into hospital leaving no adult at home to look after school going children.
Separately, Mr. Mohan made submissions on the damage to the plaintiff’s good name which he said was deliberate, severe and ongoing. Counsel referred to a book of press cuttings and indeed it is quite clear that, apart from the extensive publicity surrounding the major raid on his premises, the trial, and the sentencing, Mr. Shortt had lodged in the minds of journalists as an example of a drug dealer successfully dealt with: his name was used in connection with articles on drugs even long after the events at the Point Inn. It is equally clear that Superintendent Lennon made himself available to the media, both print and electronic, to talk and indeed to boast about the case. All this, said counsel, together with the stigmatising effect of conviction, had great damaged the plaintiff’s good name. Moreover, Mr. John Ward, Solicitor, who acted for Mr. Shortt in the appeal and in the miscarriage of justice application and in a malicious damages claim gave evidence that even after the conviction was quashed there were many in North Donegal who took the view that there was “no smoke without fire”.
Mr. Mohan then referred to the physical problems affecting the plaintiff and outlined the medical reports which were produced. He pointed out that the back, heart and (to some extent) psychological problems were ongoing. He had not been able to work since the events. He would continue to suffer from these problems into the future. Moreover his own self perception was gravely affected and, naturally, he thought with horror of all that had happened to him, if not on an hourly basis, then certainly on a daily basis.
In this regard Mr. Mohan particularly challenged the decision not to make an award of general damages into the future. He pointed out that the plaintiff’s own evidence, that of his wife and that in the medical reports all referred to suffering in the future.
Mr. Mohan was critical of the failure to make an award of aggravated damages. He stressed the criteria for such damages as set out in Conway v. The Irish National Teachers Organisation and Ors.  2 IR 305. He referred in particular to the criteria for the award of such damages as set out in the judgments in the Supreme Court in that case. Counsel submitted that Mr. Shortt met not one but all of these tests. He made lengthy submissions as to a portion of the President’s judgment which will be discussed below to the effect that the award of aggravated damages would amount to double compensation. In summary he said that the factors listed by the learned President at p.57 of his judgment as illustrating the apprehended double compensation all related to the plaintiff’s own feelings, whereas as the indicia for aggravated damages relate to the defendant’s behaviour and motivation.
Mr. Mohan put before the Court photographs of the Shortt family taken shortly before the plaintiff went into prison and another taken after he came out by way of emphasising just how long and how significant were the periods for which he lost out entirely on family life. Counsel also pointed to the very long duration of the affair as a whole, fourteen years from its inception until the hearing and pointed out that the awards had to reflect this.
Separately, Mr. Mohan made submissions on the question of exemplary damages. These, he felt, were very small indeed, very gravely inadequate. He questioned the learned President’s rationale for making only this small award and submitted that no question of “double compensation arose because exemplary damages were meant to be just that, exemplary or punitive, whereas the other headings were compensatory: there was no element of overlap”.
Mr. Mohan adopted the statements in the judgments in Conway and in particular those of Finlay C.J. and McCarthy J., as to the nature and purpose of an award of exemplary damages. In this connection he emphasised that after fourteen years there had been no apology. He referred to the case of de Rossa v. Independent Newspapers  4 IR 432. This was a defamation case where the plaintiff had been awarded £300,000. Counsel said that allowing for the change from punts to euros and changes in money values, the award for general damages here was approximately what Mr. de Rossa had got. Counsel emphasised that he was not in any way trivialising the libel on Mr. de Rossa which was very grave. He emphasised, however, that there was of course no question of imprisonment in Mr. de Rossa’s case or of the ongoing public humiliation which accompanies a stigmatising conviction. He emphasised also that Mr. de Rossa had gone on to have a successful career including becoming a member of Government and later of the European Parliament whereas Mr. Shortt was ruined and disgraced.
For the State, Mr. Michael Cush S.C. first said he was standing over all the figures in the learned President’s judgment. Speaking generally he reminded the Court of the standard of review: there could only be an uplift in damages if they bore no reasonable proportion to what this Court thought ought to be awarded. This was not disputed. Secondly, Mr. Cush submitted that there was no doubt but that the learned President fully appreciated what he was dealing with. He referred to a number of passages of the judgment including the President’s finding of “an outrageous abuse of power”. He emphasised that the judgment of the learned President had set out in eight headings all of the plaintiff’s complaints very fully. Thirdly, Mr. Cush submitted that there was no real dispute about the general approach appropriate to be taken to the assessment of damages and referred to the fact that his written submissions on this topic were not contradicted. Fourthly he submitted that the Court had to have regard to the totality of the award: “there should be some sort of checking off of the various elements”.
In relation to general damages Mr. Cush first submitted that a very large award for special damages had an effect in reduction of general damages. The reasoning he gave for this was that the extra earning power generated by a large sum of money awarded and received all at once. Even if that were not so in relation to certain headings of general damage, counsel said it was certainly true in respect of an award in relation to personal injuries.
Mr. Cush said that the sum of €500,000 awarded in general damages had to be regarded in the circumstances as including what might otherwise be regarded as aggravated damages. He referred again to the President’s list of eight headings at p.54 of the judgment and on a passage in the lower half of p.57. He conceded that the sentence containing the reference to “dual compensation”, would be a misstatement of law if it stood alone but in context it had to be read as a reference to the Conway factors of malice, oppression etc.
This point is an important one since it is relied upon to justify the omission to award aggravated damages.
Mr. Cush agreed that the de Rossa case was useful. He also agreed that the gravity of the wrong committed on the plaintiff in that case was of a lesser order than that committed in the present case. In answer to a question from the Court Mr. Cush said that Mr. Shortt’s case was the worst case of State oppression of an individual citizen of which the State was aware. He said that the absence of an apology was relevant both to exemplary and to aggravated damages.
Turning to the personal injuries aspect of the claim, Mr. Cush said that the plaintiff’s medical problems were over. When his attention was specifically drawn to the cardiologist’s report which seemed to contradict that view, counsel said that perhaps there should be “something” awarded by way of damages for personal injuries into the future in view of that.
Turning to the reputational aspects of the claim, Mr. Cush said that there were three major mitigating factors: the decision of the Court of Criminal Appeal declaring the conviction to have been a miscarriage of justice; the award made by the learned President; and the perception of gardaí in Donegal in the aftermath of Mr. Justice Morris’s very disturbing reports. Mr. Cush submitted that it was clear that all of these matters must have a rehabilitating effect on Mr. Shortt. The State’s reliance on the Morris Report as mitigating the damage to Mr. Shortt can only be on the basis of a view that the reputation of the force in that area is so damaged that an arrest by them, followed by a conviction based on their evidence, is devalued or lacks in credibility or is capable of being regarded as a set up.
Mr. Cush then turned to the topic of exemplary damages. The State’s original position had been that the approach of the President was correct: that is, it was correct to award only very limited exemplary damages having regard to the substantial award made in relation to compensatory damages and in order to avoid double compensation. However, almost immediately after embarking on this topic Mr. Cush said that the President had not been correct to consider the risk of double compensation as a factor capable of reducing the award of exemplary damages, simply because exemplary damages were not at all compensatory in nature. This was a major concession and a major alteration in the State’s case as argued in the High Court and at the commencement of the State’s submissions on appeal.
Mr. Cush submitted, however, that in the assessment of exemplary damages account had to be taken of the fact that the basis of the liability of the “paying parties” was vicarious and not direct. Mr. Cush immediately stated that there was no authority on this proposition but he submitted that it was nonetheless obviously true.
This is indeed a very far reaching submission. It is obvious that the State, Ireland, cannot itself permit perjury, conspire to frame a man on serious criminal charges or conspire to conceal misdeeds of that nature. It can only do so through the servants or agents of the State. Equally, it is beyond doubt that neither the present holders of the office of Attorney General and Commissioner of An Garda Síochána, nor their predecessors in 1994/95, were in any way personally aware of or complicit in the conspiracy which damnified Mr. Shortt. This is the usual position in claims of wrongful behaviour by the State. Accordingly, Mr. Cush’s submission amounts to saying that where a person suffers a tort of a sort egregious enough to attract exemplary damages, those damages should be reduced if the “paying party” is not himself personally responsible. In practise, that would mean a reduced scale of exemplary damages in respect of almost all misdeeds by public authorities grave enough to attract such damages in the first place.
Towards the end of his submissions on the first day of the hearing of this appeal, Mr. Cush referred to advice given to juries in defamation cases, that they should consider the purchasing power of any particular sum of money they had in mind to award. He made this reference in the context of discussion earlier in the day about the proposition that €500,000 would not buy a good two bedroomed flat in parts of Dublin. Mr. Cush said, however, that the purchasing power to be considered was that relating to premises in Donegal. However, at the start of his submissions on the second day, counsel said that he did not mean to imply that a lesser sum should be awarded to a person by reason of his being based in Donegal or any other rural location.
On the second day of the hearing, Mr. Cush first made the announcement already discussed about “something by way of apology to Mr. Shortt”. Continuing his submissions, Mr. Cush first submitted that the Common Law claims advanced by Mr. Shortt were simply “not proven” and that this could not be revisited on appeal. He stated again that awards of general damages in outrageous circumstances would very often lead to an award of aggravated damages separate from compensatory damages on the one hand or exemplary damages on the other. Here, however, the circumstances of outrage were “inherent in the claim”. Accordingly, damages in respect of this were assessed as part of the general damages and not as a separate heading of aggravated damages. He referred again to the passage at page 57 of the judgment of the learned President, which was the subject of extensive submissions from both sides.
Mr. Cush referred to two very contrasting cases. One was an English case of O’Brien where a person had been convicted of murder and imprisoned for twelve years, which period included virtually all of his twenties and his early thirties. An award of £200,000 sterling was made to him when this conviction transpired to have been wrongfully obtained. The case is very remarkable in that at one point the Crown contended that the award should be reduced to take account of the sustenance and accommodation provided to the claimant at public expense while he was imprisoned. I regard this award as inadequate by Irish standards.
In stark contrast to this was an Irish case of Bedford, unreported. There, Mr. Cush said a lady had recovered €100,000 for a wrongful arrest under s.30 of the Offences against the State Act within the past few years. She had not however been prosecuted and the detention extended to 48 hours only. To say this is not to belittle the wrong done to her or in any way to suggest that the damages were excessive.
At the conclusion of his submissions, Mr. Cush responded to questions on certain specific aspects of the case. He conceded that it was fair to say that Sheenagh McMahon’s statement alleging that her husband had confessed to her that he had perjured himself in the trial of Francis Shortt had been ignored. Equally, he said that it “seemed a likely inference” that the gardaí blocked temporary release for Mr. Shortt during his prison sentence. Mr. Cush also said that it seemed likely that the State, and not simply the gardaí, must have been involved in the offer made to Mr. Shortt while he was serving his sentence. It will be remembered that this was an offer of immediate transfer to an open prison, followed by early release, in consideration of his dropping his appeal. He said that neither on that subject, on the repeated denials of temporary release, nor on the absence of an apology until that day could he put the matter any further. He finally emphasised that Crofter Properties Ltd. v. Genport Ltd.  4 I.R. 28 “was an authority for the proposition that the award of compensatory damages had to be considered when assessing exemplary damages”.
In reply, Mr. Hugh Mohan first dealt with a reference in the judgment of the learned President to evidence being “planted”. Mr. Mohan conceded that there was “no direct testamentary basis” for that finding. It appears from the judgment of the Court of Criminal Appeal that Garda McMahon had an agreement with a long standing garda informant to plant evidence but that the woman in question got drunk and did not turn up to do so. When McMahon was questioned by the Carty team about her involvement in the Point Inn episode, he said “She was never in the Point Inn, she was supposed to go there but she never went.” This, remarkably, was not pursued. Ms. McGlinchy said McMahon had told her he had got other, named, people to plant drugs for him.
Mr. Mohan said that the €500,000 award for general damages was, so disproportionate - “by a factor of far more than 25% - that it more than met the ‘no reasonable proportion’ test which Mr. Cush had set out”. He again emphasised that this sum approximately equated to the award in
de Rossa, and the State had accepted that this was a worse case than
de Rossa. He emphasised the role of the gardaí in frustrating temporary release and pointed to the uncontradicted evidence about what the prison governor told Mr. Shortt in this regard.
In relation to Mr. Cush’s final submissions based on the decision in
Genport Mr. Mohan said that the significance of that case was limited to the punitive element in an award of exemplary damages: the decision did not at all affect the assessment of such damages based on exemplary factors, which should proceed on the basis set out in the judgment of McCarthy J. in Conway.
PART IIIDamages: General Principles.
Findings on legal issues as to Damages.
It is appropriate to recall the general principles applicable to the assessment of damages in a case such as this one. This is essential background both to the consideration of the submissions made about the judgment of the learned President and, more generally, to the assessment of damages if the appeal against the learned President’s judgment is upheld.
This is a claim for compensation under a statutory provision. The statute is the Criminal Procedure Act, 1993, s.9 of which deals with “Compensation for miscarriage of justice”. Insofar as is relevant the Section provides;
“(9)(1) Where a person has been convicted of an offence and…
(a)(i) His conviction has been quashed by the Court
[of Criminal Appeal] on an application under
(ii) The Court… has certified that newly discovered fact shows that there has been a miscarriage of justice…
The Minister shall, subject to subsections (2) and (3), make compensation to the convicted person…
In the present case, the plaintiff instituted an action for damages.
As appears from pages 2 and 3 of the judgment of the learned President, with the agreement of the parties he assessed “damages pursuant to s.9(2)of the Act in respect of the period commencing on the date on which the plaintiff was charged.”
Also by agreement, the learned President decided to “make a single award rather than to break the same down into a number of discrete heads of award in respect of the various headings of claim which could be maintained at Common Law”. The learned President pointed out that the plaintiff was making his claim pursuant to s.9 of the Act of 1993, and “further or in the alternative damages for breach of constitutional rights, conspiracy, negligence and breach of duty, malicious prosecution, false imprisonment, loss of reputation including but not confined to damages for libel and slander and damages for deliberate and conscious abuse of statutory power”. In this regard the learned President said:
It would appear therefore that, by agreement, the plaintiff is entitled to damages under s.9, which include but are not limited to the various Common Law causes of action listed by the learned President. This is so in respect of all events happening after Mr. Shortt was charged: in respect of events predating that he is left to his Common Law rights.
As to the general principles of assessing damages, there was on the hearing of this appeal no dispute as to the authority of the decision of this Court in Conway v. Irish National Teachers Organisation  2 IR 305. There, Finlay C.J. had this to say at page 316ff:
(1) Ordinary compensatory damages, being sums
(a) The manner in which the wrong was committed, involving such elements as oppressiveness, arrogance, or outrage, or
(b) The conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or
(c) The conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff up to and including the trial of the action.
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part or recognition of the added hurt or insult to a plaintiff who has been wronged, and in part a recognition of the cavalier or outrageous conduct of the defendant.
(3) Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the Courts particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, and quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered. I have purposely used the above phrase ‘punitive or exemplary damages’ because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be regarded as constituting the same element”.
The Constitution in guaranteeing rights imposes corresponding duties. In the instant case, the defendant’s in deliberately interfering with the plaintiff’s right have failed in their own duties. Every member of the judiciary has made a public declaration to uphold the Constitution; it would be a singular failure to do so if the Courts did not, in appropriate cases such as this, award such damages as to make an example of those who set at nought constitutional rights of others. As the Chief Justice has said, that is not to say that in every case, such as defamation or assault, where there is also by definition a breach of a constitutional right, there should be an award of exemplary damages. In my judgment there was here a compelling case for the award of such damages”.
While other cases were cited in the course of the argument I am satisfied that Conway sets out the basic principles of our law on the fundamental classifications of damages, and that these are sufficient to deal with some of the fundamental matters in difference on the hearing of this appeal.
Aggravated and exemplary damages.
At p.57 of the judgment of the learned President, he had this to say about aggravated damages:
While an argument exists as to the rationality of awarding exemplary damages where liability is vicarious, the Supreme Court had no difficulty in making such an award in McIntyre v. Lewis & Ors.  1 IR 121 in respect of a claim for assault false imprisonment and malicious prosecution against gardaí and the State. The plaintiff was awarded compensatory damages of £5,000 and exemplary damages of £20,000. However the Court must be also conscious that it does not award double compensation here. In the circumstances of this case there was an outrageous abuse of power by the garda officers involved. Evidence was planted. Perjured evidence was relied upon. It had not been expected by them that the plaintiff would be sent to prison but when he was they took no step to remedy the situation. I propose to mark this conduct. I am satisfied that the circumstances of this case fully justify an award of substantial exemplary damages. However again I must be conscious of the risk of double compensation. I propose to award the plaintiff under this heading the sum £50,000”.
As has been seen earlier in this judgment the principle issues on damages raised on the hearing of this appeal relate to the refusal to make any award of aggravated damages, on the basis that it would constitute double compensation on the one hand, and the reduction in the quantum of exemplary damages for the same reason, in order to avoid double compensation.
As we have seen, on the hearing of the appeal the State conceded that the second finding, that in relation to exemplary damages, is wrong. Specifically, it was conceded that the President had not been correct to consider the risk of double compensation as a factor capable of reducing the award of exemplary damages, because such damages were not at all compensatory in nature.
In my view, this was a well advised concession on the part of the authorities. The purpose of exemplary damages, as stated by McCarthy J. in the extract from his judgment quoted above, is “… truly to make an example of the wrongdoer so as to show others that such wrong will not be tolerated and more to the point will not be relieved on the payment of merely compensatory damages. It does provide a windfall for the successful plaintiff…”.
It appears to me to follow from this analysis, which is quite consistent with that of Finlay C.J. in the same case, where the award of exemplary damages is stated to be “… quite apart from [the] obligation… to compensate the plaintiff for the damage which he has suffered”, that indeed exemplary damages as they are currently understood are in a category quite separate from compensatory or aggravated damages. As is pointed out in the judgments in Conway the term “exemplary” is sometimes used interchangeably with “punitive”. The learned judges in that case explained the reason for their preferring the former term. On the facts of the present case, I would share that preference. Even if this plaintiff were awarded a truly enormous sum under this heading, I doubt if it could be described in any real sense as “punitive”. The money would not come from the pocket of any individual or even from any individual company or other business entity. It would in the end be levied on the tax payer and neither the gardaí who committed the tort, or any individual member of the force, would be one cent the worse for the award. Such an award cannot truly be described as punitive. On the other hand it seems quite possible to make an award which will “make an example of” the wrongdoers here and the legal entities responsible for them by marking in terms that everyone can understand the sheer evil of what was done and the detestation which the Courts, speaking for civil society in general, must feel and express for it. I will return to these topics below: for present purposes it is sufficient to note that they are quite separate in principle and reality from compensation: they are “quite apart from” compensation to use the phrase of Chief Justice Finlay. Accordingly I believe that it was incorrect to consider, in reduction of exemplary damages, the risk of double compensation.
On the topic of aggravated damages, the position of the State is a more nuanced one. The relevant part of the extract from the learned trial judge’s judgment above appears to me to be:
Aggravated damages, on the other hand focus, not on the feelings of the plaintiff, but on the actions and demeanour of the defendant. This emerges clearly from a consideration of the indicative list of three criteria on the basis of any one of which aggravated damages may be awarded. This is contained in the judgment of Finlay C.J. at p.317. Whether the commission of the tort occurred in a manner involving “oppressiveness, arrogance or outrage”, whether the wrongdoers conduct after the tort “such as a refusal to apologise or ameliorate the harm done or the making of threats to repeat the wrong” exacerbate the wrong; whether the conduct of the wrongdoer “in the defence of the claim of the wronged plaintiff” will aggravate the damages - all feature on the conduct of the defendant, their servants or agents and not on the plaintiff. Aggravated damages are compensatory damages increased by the presence or absence of the factors mentioned by Finlay C.J. or others. It is, therefore, wrong in principle to say that an award of compensatory damages which takes account of the plaintiff’s emotional distress (here, an extremely important factor: the man was driven to despair) exhausts the capacity for an award of aggravated damages.
But that is not the end of the issue on aggravated damages because Mr. Cush contends, in the alternative, that all of the factors which might otherwise ground an award of aggravated damages were, in the particular circumstances of the present case, “inherent in the claim”. If this submission means that because Mr. Shortt’s claim was for damage caused by a conspiracy by gardaí, he is debarred from an award of aggravated damages because the wrongdoers’ status as gardaí was essential to enable them to act as they did, I cannot accept it. It is quite possible to be damnified by perjury on the part of a person who is not a member of An Garda Síochána or the holder of any official position. Equally, it is quite possible to be deprived of one’s liberty, perhaps for years, (by, for example, terrorists as in the case of Mr. Terry Waite), without any ostensible process of law. Even apart from the status of the immediate wrongdoers, there are in my view many features of “oppressiveness arrogance or outrage” about the conduct of the “paying parties” in the present case. A series of false charges were preferred against an innocent man in the cynical expectation that he would, and would be advised to, plead guilty to at least one of them as part of a “semi-deal”. As a result of his refusal to do this he was sent forward to a higher court without sufficient evidence and eventually received a three year sentence. This caused some drunken distress to one of the wrongdoers but he absolutely refused “to apologise or to ameliorate the harm done”, as did his superior. Moreover, it appears to me, the offer to get him early release if he withdrew his appeal, thereby acknowledging his guilt, clearly and necessarily implied that if he did not do so he would be left to rot in jail which is clearly in my view a “threat to repeat the wrong”, or at least to continue it. Furthermore, the conduct of the wrongdoers after Mr. Shortt’s release was equally scandalous: his attempt to obtain the redress of having his conviction declared a miscarriage of justice was met with deliberate cynical and continuous perjury during the long hearing in the Court of Criminal Appeal.
From the foregoing it will be clear that I accept the submission of Mr. Mohan S.C. that Mr. Shortt “ticked all the boxes” for an award of aggravated damages. It would be sufficient if he ticked one. Furthermore, it seems to me that many of the features just mentioned are separate and apart from the initial conspiracy, even though they would not have occurred but for that seminal event. It was not necessary to the conspiracy, for example, that the plaintiff be denied temporary release, that an attempt was made to get him to acknowledge his guilt as the price of early release, or that perjured evidence was deployed in answer to his claim for redress.
Not only this is a case where aggravated damages, in addition to ordinary compensatory damages are available; I believe it is case where it is imperatively necessary in justice that they be awarded.
PART IV(i) General damages.
Damages suffered by Francis Shortt.
(ii) The following features seem to me to be amongst those which aggravate the damage indicated above. The conspiracy against Mr. Shortt was committed by persons wearing the uniform of the State. The gardaí who were party to it took advantage of the reputation of the Force, earned by generations of dedicated and honest members, and hoped that this reputation would carry them through the difficulties created by improbable aspects of their evidence. This hope was borne out. They acted out of pure self interest: there is little evidence of initial personal malice and none of “noble cause” corruption. Not content with the conviction and sentence they acted to deprive Mr. Shortt of temporary release as long as they could. Someone in authority very cynically arranged that he be offered early release in return for an admission of guilt. When Mr. Shortt first moved to have his conviction set aside on the grounds of newly discovered facts this was agreed to even though at that time he could point only to general evidence of misdeeds by gardaí in the Donegal division. When he moved to have his conviction declared a miscarriage of justice it was opposed on the basis of perjured evidence. The State continued to oppose the declaration of a miscarriage even though anyone listening to the garda evidence would have become deeply suspicious, to say the least. A vital piece of evidence relating to McMahon’s admission of perjury was withheld not only from Mr. Shortt but from the State counsel. When it came to light it transpired that nothing had been done about it. The documents discussed earlier in this judgment which formed the bulk of the newly discovered material were not communicated to Mr. Shortt or his advisers when they came to the attention of the garda authorities. Instead, his lawyers were left to piece his case together, which they did with remarkable diligence, making full use of the provisions for disclosure and discovery.
Not least of the aggravating factors must be the cynical plausibility with which the garda account was advanced both in the courtroom and in the media. Noel McMahon adopted the demeanour of a plain blunt man doing his sincere best despite the fact that his command of language sometimes failed him and, as he often claimed, that his memory was not good for detail. Kevin Lennon, as Superintendent, made himself available to the media at various times. Mr. Shortt had the unpleasant experience of seeing him giving a new television interview with the Point Inn premises as backdrop while he was in prison. He came across as a media-savvy sophisticated and talented garda officer who appeared gravely concerned about the drug problem and determined to do something about it and who had organised an undoubted coup at the Point Inn but ingratiatingly shared the credit with “the lads” under his command. Yet each of these men was so unscrupulous that, apart from anything else, they seriously frightened each other. As explained above, this led to their eventual unmasking. But when they were in their full power and authority their behaviour to Mr. Shortt was cynical, brutal, calculated and oppressive. Moreover, deep concern was felt in the Garda Síochána in relation to McMahon, who had been rendered unstable by drink, but no-one felt able to do anything about him. He even continued to carry his official firearm, which he was clearly unfit to do, because none of his superiors had the gumption or the moral authority to take it from him.
It must also be borne in mind that all of these things happened to a man of 60 years of age and upwards without any previous convictions. His age and previous good character have a number of consequences. First of all, it must be obvious that the rigours and terrors of imprisonment will bear harder on a 60 year old of good character and no previous exposure to the criminal law and the penal system than on a 25 year old with a history of violence and many previous convictions. Secondly, when his conviction was eventually declared a miscarriage of justice he was about 70 years old and, on the undisputed evidence, was physically, mentally and emotionally an older man than his chronological age would suggest. He simply had less time and less resilience to rebuild his life. Not only has he lost years that will never come again but the years after his torment abated are, by reason of his age, and the consequences of the wrong done to him, simply less useful for any attempt to regain his previous position in life, in business, and in society.
One particular event, chronicled in the prison diary, emphasised to me the appalling position in which the applicant here was put. When the still somewhat mysterious offer of transfer to an open prison and early release was made to him, Mr. Shortt took advice as to his position from several sources. He had a consultation, in prison, with a solicitor of undoubted competence who instructed Senior Counsel rightly regarded as a leading expert in the Criminal Law. Having considered the case with all appropriate diligence, counsel felt compelled to advise that he could see no legal course of action with any reasonable prospect of success and that, in the interest of his family, Mr. Shortt should consider the offer seriously. It is plain that he did so, at great emotional cost over a considerable period. I have no doubt that this was an additional agony, not easy to overstate.
This aspect of the case also emphasises how unpromising the case must have seemed when it was eventually taken on by Mr. John P. Ward, Solicitor, and Counsel retained by him. It was plainly an enormously onerous case and the chances of its success must have appeared very poor. Having regard to Mr. Shortt’s reduced circumstances, the prospect of any payment were extremely remote. The fact that it was brought to a successful conclusion has quite properly earned plaudits: but in my view the fact that so utterly unpromising a case, clearly requiring an enormous investment of time, was taken on in the first place on behalf of a person whom the events of the case themselves had rendered both a pauper and a pariah, reflects well on the legal profession.
The absence of any apology until the last moment is, perhaps, the final aggravating factor to be considered.
PART V.Role and attitude of the Gardaí.
I firmly believe that, in the public interest, a very substantial sum must be awarded under this heading in order to “make an example of” the wrongdoers here. The enormous power conferred on the gardaí, partly by law and partly by the (often well deserved) trust of the public, make what happened in this case nothing less than an obscenity. These gardaí were out of control: the whole affair graphically illustrates Mr. Justice Morris’s conclusion that the gardaí are “losing their status as a disciplined force”. (Morris Report, paragraph 13.101). What gardaí did to Mr. Shortt was so outrageous as almost to defy description but the garda force has yet to admit this. The former Garda Representative Association representative in Donegal told the Morris Inquiry, speaking of internal disciplinary procedures:
The outrageousness of what was done, the very long period required to discover it, the failure of An Garda Síochána itself expressly to acknowledge, and apologise for, the misdeeds of its members and the grave risk to society as a whole if gardaí behave as some of those involved in this case behaved, render it absolutely necessary to make a substantial award of exemplary damages. If there were no such award I firmly believe that Courts would be making themselves part of the problem rather than part of the solution. What happened to Mr. Shortt boggles the mind and almost defeats the imagination. A very significant award is necessary in order to “make an example of” the wrongdoers in a serious way, in the public interest.
If this case and others like it teach anything, it is that it does no favour to an institution like the gardaí to accord their members a special level of presumptive credence. On the contrary, this attitude offers a temptation to unscrupulous gardaí who may assume that, most of the time, the public, the media, judges and juries will accord credence to the garda account, even if it is in certain ways rather improbable. This case plainly demonstrates that some gardaí will lie, simply to benefit their own careers, and lie again, even on oath, to avoid the consequences of having told the first set of lies, and so on. It also reveals that the prospect of this being detected and acknowledged by the gardaí themselves is restricted by an attitude which dictates that “… we don’t name the names… we are not going to be hanging our people…”, in the words of a former G.R.A. representative in Donegal, cited above. Moreover, one must recall that a conspiracy of the sort featured in this case may develop into something much larger than originally intended. It is instructive to consider the attitude of the corrupt Detective Garda, McMahon: he fully expected the whole thing to end in the District Court, with a plea of guilty to one charge and a trivial penalty. He was astonished, even incredulous, that Mr. Shortt and his then solicitor would not play ball with this arrangement simply on the basis that he was not actually guilty. No doubt sincerely, in his own mind, he blamed Mr. Shortt’s original lawyers for all that happened afterwards. He cheerfully participated in the conspiracy to beef up the evidence, orchestrated by his superior, and cheerfully perjured himself in the Circuit Court. But he was horrified at the three year sentence whose injustice he seemed to have recognised though he spoke about it only when drunk. This led him only to slobber drunkenly about what he had done, to his wife and to Adrienne McGlinchy. In other words, Noel McMahon emerges as someone whose life experience has led him into a total disregard for truth, a ready willingness to perjure himself, and an expectation that others, even some amongst his superiors in An Garda Síochána, are just as unscrupulous as he.
Legal aspects of quantification.
Certain aspects of exemplary damages have been considered earlier in this judgment, for the purpose of dealing with the submissions in relation to the judgment of the learned President. It is not proposed to repeat now what has already been said, but certain of the passages cited, notably from Conway, are clearly relevant in the assessment of the quantum of such damages.
In general, I accept what is said in the Law Reform Commission’s paper on aggravated, exemplary and restitutionary damages at paragraphs 101.02 and 1.03:
In Conway v. I.N.T.O  2 IR 305, the Supreme Court found that the aim of exemplary damages was:
A similar dictum of McCarthy J. in Conway has already been cited. The Law Reform Commission also reflects these dicta, in my opinion, when it says at paragraph 1.06:
Accordingly, I am of the opinion that in a case such as the present where the defendants are public authorities, the principal consideration in calculating the amount of an award of exemplary damages must be the amount necessary “… truly to make an example of the wrongdoer so as to show others that such wrong will not be tolerated and more to the point will not be relieved on the payment of merely compensatory damages”.
But I wish to emphasise that, in an appropriate case, both the punitive and the exemplary heads of damage are available to a Court addressing a case on its individual facts.
Although it is important, for the reason set out above, that exemplary damages be awarded as a separate heading of damages and not included in an omnibus award, the same does not necessarily apply to aggravated damages. Exemplary damages are, and aggravated damages are not, in a category and in respect of an object, quite separate from compensatory damages. Aggravated damages, on the other hand, are compensatory damages increased by reason of the factors set out in the judgment of Finlay C.J. in Conway v. Irish National Teachers Organisation, much cited above. In that case, as it happens, the defendant was not a state authority but a trade union which, in pursuance of an industrial dispute, had interfered with the constitutional rights of certain school children. Mr. Cush cogently argued that the general damages had to be regarded as including what might be regarded as aggravated damages and also sought to avoid, or to minimise, any uplift in the compensatory damages on the basis that the paying parties liability was vicarious only. Certainly it is true that where a conscious and deliberate wrong is done by servants of the State, especially when a perversion of justice is brought about by those charged with enforcing the law, aggravated damages are very likely to arise. This seems to be inevitable by virtue of the matters which Finlay C.J. regarded as calling for an increase in compensatory damages: elements such as oppressiveness arrogance or outrage, and the conduct of the wrongdoer after the commission of the wrong and the conduct of the wrongdoer in legal proceedings. This case, unfortunately, features elements of that kind which do not entirely, and in some cases do not even substantially, overlap with the original wrong. These have been sufficiently outlined above. In the present case I consider, and I understand that my colleagues agree, that a single award should be made in respect of compensatory and aggravated damages. It will not always be appropriate to do this and in particular the case for making separate awards is stronger in a trial court (whether with or without a jury) so that if there is an appeal the elements of the total award can be precisely ascertained. But it is not intended to lay down any hard and fast rule in this regard.
Furthermore, although this case has many aspects which imperatively call for an award of exemplary damages it must be obvious that such damages will not automatically be called for simply because there is a finding that a particular conviction amounted to a miscarriage of justice. Here, the newly discovered facts, principally the preserved but concealed documents and the evidence of Sheenagh McMahon, clearly reflected on the conduct of the gardaí in the prosecution, both before and during the court hearing. But it is possible to hypothesise a case where, for example, a new scientific discovery or insight factually undermined forensic evidence important to the conviction, and which was advanced at the time of the trial in good faith. In such circumstances, if a new evidence were fairly dealt with by the prosecuting authorities, there might be no cases for an award of exemplary damages. The example taken, of new scientific evidence, is not intended to be exhaustive on the circumstances where no exemplary damages would be called for.
The purpose of “truly making an example” of the persons legally responsible is above all to deter any repetition of the sort of conduct which attracts those damages in the first place. In the circumstances of this case it is necessary to consider, as a part of this objective of deterrence, that Mr. Shortt’s vindication has been very long in coming in part because of a lack of urgency in the investigation of his case after conviction. This is illustrated, and not exhaustively, by the effective failure to investigate Mrs. McMahon’s perjury allegation, and by the effective loss for a long period of the physical record of that allegation. Moreover, there has been a consistent attempt by the State Authorities to deal with this case on the most minimal basis possible. Firstly it was apparently hoped that a promise of early release would induce Mr. Shortt to drop his appeal. If he were believed to be guilty, it is difficult to see why early release from a sentence of three years imprisonment would be thought appropriate. If it were appropriate to grant him early release it is impossible to see why a condition that he should drop his appeal against his conviction should be attached to such release. Secondly, the Director of Public Prosecutions (who had, remarkably, not then considered Mrs. McMahon’s allegation) agreed to the quashing of Mr. Shortt’s conviction, for no particular stated reason. The application to have Mr. Shortt’s conviction considered, not merely unsafe or unsatisfactory, but a miscarriage of justice, was contested tooth and nail by the Authorities, vital information withheld from State Counsel, and perjured evidence deployed.
It is not easy to find precedents to guide the Court in awarding damages, whether compensatory, aggravated or exemplary in a case like this. One must start with the State’s concession that Mr. Shortt’s case was the worse case of State oppression of an individual citizen of which the authorities were aware. One must bear in mind the case of Bedford, referred to above, where there was an award of £100,000.00 compensation for a wrongful arrest under s.30 of the Offences against the State Act, with forty-eight hours subsequent detention. One is painfully aware that the case most similar to the present, in that it featured imprisonment for a period of years following a wrongful conviction is that of Edward Noel Kelly and the persons charged with him, referred to above. But those cases were settled, so that there is no court decision on the appropriate level of damages. Moreover, the only information available as to the amount of the settlement is from unauthenticated newspaper accounts, which cannot influence the Court’s decision here. It is of course true that the State must be aware of the amount of those settlements, but it may be that it is precluded, by a confidentiality agreement, from revealing them.
The case of Mr. Proinsias de Rossa, referred to above, was one of an appalling defamation, printed and disseminated very widely. Drug dealing, or the enjoyment of the proceeds of drug dealing, was part of the utterly false allegation made in that case. But it was unaccompanied by imprisonment and ritual degradation of the victim such as happened in this case and it did not feature the abuse of State power, which was the mechanism of the destruction of Mr. Shortt. Moreover, Mr. de Rossa’s circumstances were such that he was enabled to recover from the attack on him in a much more effective way than Mr. Shortt has been able to do.
There is no Irish authority to suggest that the award of exemplary damages is limited to the amount of the award of compensatory damages or some lesser sum. In McIntyre v. Lewis  IR 121, the plaintiff was assaulted by some gardaí in Birr, Co. Offaly. They then charged him with assault and released him on bail. He was sent forward for trial on a charge of assaulting a guard but was acquitted. He then sued the Gardaí and the State Authorities. A jury awarded £5,000 damages for assault and false imprisonment and £60,000 damages for malicious prosecution. The Supreme Court altered this award to £5,000 for compensatory damages and £20,000 exemplary or punitive damages in respect of malicious prosecution. O’Flaherty J., while concurring in this award, expressed the view that an award of exemplary damages “should properly be a fraction rather than multiple of the amount awarded by way of compensatory damages”. I wish to say that I cannot agree with this statement. It is inconsistent with the actual result in McIntyre v. Lewis. But, more importantly, it is contrary to what I am satisfied is the true principle of aggravated damages in an action against State Authorities: that it be sufficient “truly to make an example” of the wrongdoers and that it be effective to deter a repetition. I cannot agree that the sum awarded in the High Court in this case is even remotely sufficient in either regard. It must however be recalled that that award was made on the basis of acceptance of a submission which the State resiled from on this appeal.
PART VIThe assessment of special damages in this case is not an easy one. There was somewhat conflicting expert evidence from Mr. Desmond Peelo and Mr. Ray Jackson, Chartered Accountants, and from Messrs. John P. Younge and Messrs. Morrisseys, two firms of Auctioneers and Valuers each of which has acknowledged expertise in the valuation and sale of licensed premises. All the witnesses mentioned are highly skilled and highly reputed practitioners.
There is no doubt that Mr. Shortt has lost the stream of income from the Point Inn, and the Point Inn premises themselves, sold by a receiver appointed after his conviction. The premises had by then been burnt by the IRA and have now been restored by the purchaser to a good condition at a cost of about €750,000. Mr. Shortt is also, he claims, at a loss of the potential income from a caravan site adjacent to the Point Inn which he had planning permission to develop. Mr. Shortt’s experts were of the opinion that this scheme would have been profitable in itself and, just as significantly, would have considerably increased the sales in the adjoining pub.
There are a number of factors which make the calculation of special damages difficult. The premises themselves are unusual, being remote from other facilities or residences, though of course within an easy drive of the City of Derry. They are maritime but not quite beach front premises, a fact which is relevant because everyone agreed that there is a premium for beach front premises, especially caravan parks. It was not easy to find direct comparators for the values of the interest in the land due to these features: in particular, I am satisfied that the “sensational” price obtained for the beach front caravan park in Nairn, Portnoo, Co. Donegal, is not appropriate as a guide. Calculations of loss of income are also difficult because, as Mr. Peelo said:
A further complicating factor is the limited nature of the trade carried on in the public house. Though the Shortt family had been in possession of these premises since about 1930, the nature of the trade had changed a good deal. To some extent it was perhaps in a state of flux: not long had elapsed since the refurbishment and reopening of the premises which occurred when Mr. Shortt came into sole possession of them following the death of his brother. However, the fact is that the premises had come to trade mainly as an entertainment venue rather than as a public house as that term is traditionally understood. The licensed premises traded only at the weekends and ran a discotheque one night a week. There was some evidence, referred to in the judgment of the learned trial judge, that this reflected the fact that 90% of the clientele came from Northern Ireland: having regard to the fact that Derry was the major centre of population near the premises this is probably true. It illustrates the limited nature of the trade which it was profitable to carry on and this, of course, has consequences for the assessment of the potential.
That, indeed, was another subject of major dispute. The State’s experts were inclined to value the premises by virtue of their capital value calculated principally on the basis of a multiple of turnover. Mr. Peelo and Mr. Younge were keen to build in a figure for potential, and the learned trial judge did this as best he could on the somewhat unsatisfactory evidence which was all that was available to him.
Having carefully considered the reports, the evidence and the judgment, I am not satisfied that it has been shown that the learned trial judge was in error in any of these respects including the deductions which he made. Accordingly, under this heading, I would uphold the findings of the learned trial judge. I would also uphold the fairly nominal assessment of €5,000 in respect of general damages at common law in respect of which there are certain difficulties of proof.
PART VIIBased on the matters set out above at some length, and bearing in mind the concession that this case is the worst of its kind of which the State Authorities are aware, and considering the unchallenged evidence of Mr. Shortt and those who gave evidence on his behalf, I concur in the awards of damages under each of the relevant heads in the sums proposed by the learned Chief Justice.
Awards and Order
For the reasons set out above I would order the payment by the defendants jointly and severally to the plaintiff of the total sum of four million six hundred and twenty-three thousand eight hundred and seventy-one euro. (€4,623,871.00).