S44 DF (called Desmond on this appeal) v Commissioner of an Garda Siochana [2015] IESC 44 (15 May 2015)

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Cite as: [2015] IESC 44

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DF (called Desmond on this appeal) v Commissioner of an Garda Siochana
Neutral Citation:
[2015] IESC 44
Supreme Court Record Number:
340, 349 & 372/13
High Court Record Number:
2012 8876 P
Date of Delivery:
Supreme Court
Composition of Court:
Denham C.J., Murray J., Hardiman J., O'Donnell Donal J., Charleton J.
Judgment by:
Charleton J.
Judgments by
Link to Judgment
Charleton J.
Appeal allowed - vary High Court Order
Denham C.J., Murray J., Hardiman J., O'Donnell Donal J.

Allow And Vary

An Chúirt Uachtarach

The Supreme Court

Denham CJ
Murray J
Hardiman J
O’Donnell J
Charleton J

Record number: 2012/8876P

Appeal number: 372/2013


D F (called Desmond on this appeal) (suing by his next friend K McE) (called Maeve on this appeal)


The Commissioner of An Garda Síochána

The Minister for Justice, Equality and Defence

Ireland and the Attorney General


Judgment of Mr Justice Charleton delivered on Friday the 15th day of May 2015

1. This appeal raises two issues: firstly, when does a plaintiff have an entitlement to trial by jury where multiple torts are pleaded in respect of an arrest incident; and, secondly, when does a party to proceedings have a statutory entitlement to anonymity based on embarrassment arising from of a medical condition. The appeal is from two judgments of Hogan J in the High Court: DF v Garda Commissioner & Others [2013] IEHC 5, as to the jury trial issue; and DF v Garda Commissioner & Others (No 2) [2013] IEHC 312, as to the anonymity issue. On this appeal the plaintiff appellant will have the assumed name of “Desmond”. The defendant respondents will be referred to as “the State”. There have been now three written judgments related to this case in the High Court. The third relates to the viability of constitutional torts alongside civil wrongs defined at common law; DF v Garda Commissioner & Others (No 3) [2014] IEHC 213 and is not part of this appeal. Counsel for Desmond has complained of being subjected to a multitude of procedural motions from the State. While it is understandable that those drafting a plenary summons and a statement of claim would wish, in aid of a plaintiff, to include all relevant causes of action, the result of pleading multiple and diverse apparent causes of action may be that the opposing side requires to interrogate these. That approach to pleading can obfuscate the core issue in a case.

The incident and the pleadings
2. The plaintiff/appellant Desmond suffers from a severe form of autism. The statement of claim, dated 6 September 2012, gives a date of birth for Desmond in 1985 and describes him as having severe learning disabilities. Both sides accept that on 24th September 2010 Desmond was arrested by gardaí, ostensibly under section 12 of the Mental Health Act 2001. This arrest is pleaded as being:

      … unlawful, contrary to law, negligent and/or carried out in breach of duties (including breach of statutory duties) and in breach of the plaintiff’s Constitutional rights as well as his rights under the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the ‘European Convention’) as incorporated into Irish law by the European Convention on Human Rights Act 2003 and his rights under the Charter of Fundamental Rights of the European Union 2010.
3. It is claimed that as a result of this allegedly unlawful arrest, Desmond “suffered and sustained and continues to suffer and sustain serious injuries, to include physical and significant psychological and/or psychiatric injury, loss, damage and expense.” The pleading continues with allegations that there was handcuffing and restraint of Desmond and a failure to respond to later pleas from his mother, now deceased, to release him and that he was only released when his father arrived at the station. The actions of the gardaí are described as being “inter alia, in bad faith and/or want of reasonable care” in respect of these aspects of the detention. “Aggravated, punitive and/or exemplary damages” are sought “by virtue of the inhuman and degrading treatment” to which Desmond was allegedly subjected due to “placing him in an alien and hostile environment”. Further, it is claimed that the State acted in a negligent manner consequent upon a formal complaint to the Garda Síochána Ombudsman Commission and that, in so doing, Desmond’s entitlement under the Constitution to privacy and to family life was breached and rights under the European Convention were also infringed. Particulars of negligence are pleaded “to include breach of statutory duties on the part of the defendants, their servants or agents”. The prayer for relief follows on from the particulars of the claim. This seeks:
        1. a declaration that the arrest was unlawful

        2. a declaration that the detention was unlawful

        3. damages from false imprisonment

        4. damages for assault, battery and trespass to the person

        5. damages for personal injury, loss damage and expense and psychiatric injury

        6. damages for negligence and breach of duties of a statutory kind

        7. damages from breach of the plaintiff’s Constitutional rights to liberty, bodily integrity and privacy

        8. damages for failure to defendant vindicates these rights and to protect the plaintiff from unjust attack

        9. damages for breach of the plaintiff’s rights under the European Convention on Human Rights Act 2003 “to include, inter alia, the rights to liberty, to private and family life and the right not to be subjected to inhuman and degrading treatment”

        10. damages for breach of Articles 3.1, 4, 6 and 7 of the Charter of Fundamental Rights of the European Union

        11. aggravated, punitive or exemplary damages

        12. such further and/or other relief as the court thinks fit

        13. interest pursuant to statute

        14. costs

4. By reciting these claimed reliefs, it is not to be in any way taken that it is accepted that any such wrong exists as a matter of law. The State defence, delivered on 28 September 2012, awaits proof of the plaintiff’s date of birth and any particulars related to his disability. The defence set out a factual narrative. It asserts that prior to the arrest Desmond allegedly chased two young women with a stick, causing them some distress. Following on a complaint, it is said, gardaí arrived at the scene to find Desmond swinging a stick. On attempting to speak to him, the State claims, the gardaí realised that there was a disability but decided that section 12 of the Mental Health Act 2001 applied and took him into custody on the basis that he was “a person suffering from a mental disorder such that there was a serious likelihood of the plaintiff causing immediate and serious harm to himself or to other persons”. It is pleaded that care was taken under the relevant statutory provision to contact a medical practitioner. A different view to the statement of claim is given as to the facts related to custody. The defence denies that there was a breach of the torts, duties, constitutional rights and convention rights asserted on behalf of Desmond.

5. The incident was simple: the core issue is whether there was a lawful arrest and a lawful detention. It is really about whether Desmond was unlawfully arrested. When gardaí arrest someone they usually place them in a squad car or use reasonable force to usher them into a Garda station or a cell. That involves unwanted touching. Hence false arrest and intentional trespass to the person, assault, are connected torts. Apart from that, a subsidiary issue may arise on the pleadings in this case as to whether the statutory mechanism for dealing with complaints was not followed by the State defendants and as to whether, as a matter of law, this gives rise to an entitlement to damages.

Jury trial in civil cases
6. The trial judge reasoned that, as a matter of law, false imprisonment was a tort which required to be tried by a judge without a jury. It was the role of the judge, Hogan J held, to decide whether an imprisonment was false, and therefore tortious. He further decided that once those decisions had been made by the trial judge that the jury could proceed to assess damages. Whether an arrest is legally justified or not is a matter of law, the trial judge reasoned. This is correct but such a decision is also squarely based on fact. After an analysis of the relevant authorities, at paragraph 39 of his judgment, the trial judge stated:

      All of this means is that the legal issues in the trial - whether the arrest and detention was lawful, whether the defendants were negligent and so forth - will be exclusively matters for the trial judge to determine. This also means that the issue of any declaratory relief in relation to the validity of the arrest and detention will be exclusively a matter for the trial judge to determine. All other matters (including the question of damages in respect of all claims, should this arise) remain, in principle, at any rate, matters for the jury.

7. In making that ruling, the trial judge was particularly influenced by the relevant provisions of the Rules of the Superior Courts. This emerges, in particular, from his conclusion on this issue at paragraph 40:

      It follows from the foregoing that the plaintiff is entitled to jury trial in respect of the claims contained in the general endorsement of claim. I will, however, direct pursuant to O. 36, r. 7 that all issues touching on concerning the legality of the arrest and detention of the plaintiff on 24th of September, 2010, by members of An Garda Síochána (including the claims from negligence and breach of duty) are to be determined by the trial judge alone, with the remaining issues to be determined, subject to appropriate directions of the trial judge, by the jury.
8. On this appeal, counsel for Desmond argue that this ruling undermines the traditional approach to the role of judge and jury in a civil case. They claim also that a plaintiff has an entitlement to jury trial, meaning that the jury tries the case. Every question of law, counsel assert, is capable of being reduced to issues of fact which the jury will answer and in respect of which, if the answers are positive, they may proceed to assess damages. There is nothing novel about a jury deciding as a matter of fact that a person has been wrongly arrested, counsel for Desmond urge, in respect of alleged shoplifting or because a police power was claimed to have been improperly used. Such decisions have been tried without difficulty heretofore, it is claimed. On the other hand, counsel for the State seek to uphold the ruling of the trial judge.

9. With the passing of the Supreme Court of Judicature Act (Ireland), 1877 the then extant right to jury trial was preserved for civil actions, meaning Queen’s Bench, as opposed to Chancery causes. Section 48 of the Act of 1877 provides that:

      … nothing in this Act, or in any rule made under its provisions, shall take away or prejudice the right of any party to any action to have questions of fact tried by a jury in such cases as might heretofore of right have so required, nor upon any trial before a jury to have the issues for trial by jury submitted and left by the Judge to the jury before whom the same shall come for trial, with a proper and complete direction to the jury upon the law and as to the evidence applicable to such issues …
10. In the consequent Rules of the Supreme Court (Ireland), 1891 the elements of procedure relevant to this issue were set out under Order XXXVI at numerals 3, 4 and 5 thus:
      3. All causes or matters assigned by the Principle Act to the Chancery Division, and all other causes are matters which the parties are not entitled as of right to have tried with the jury, shall be tried with a Judge without a jury, unless the Court or a Judge shall otherwise order.

      4. In all cases not within the preceding rule, the parties serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried without or with the jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within four days from the service of ordinary notice of trial, within two days from the service of short notice of trial, within such extended time as the Court or a Judge may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.

      5. The Court or a Judge may, if it shall appear desirable, direct trial without a jury of any question or issue of fact, or party of fact and party of law, arising in any cause or matter which previously to the passing of the principle Act could, without any consent of the parties, have been tried without a jury, and such trial may if so ordered by the Court or a Judge, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.

11. The Rules of the Superior Courts of 1986 still follow some of these 1891 provisions in Order 36. It may be commented, however, that the entitlement of a judge to try a jury issue alone in rule 7 fits in a most confusing manner in the context in which it now appears in the modern text. Because of its lack of utility, whether retaining this rule as worthwhile is to be doubted. The modern text reads thus since 1986:
      5. All causes or matters, which the parties are not entitled as of right to have tried with a jury, shall be tried by a Judge without a jury, unless the court shall otherwise order.

      6. In all cases not within rule 5, the parties serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried with or without a jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within fourteen days from the service of notice of trial, or within such time as the Court may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.

      7. The court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which, without any consent of parties, can be tried without a jury, and such trial may, if so ordered by the Court, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.

12. Under Article 38.5 of the Constitution, the only right to trial by jury is in respect of non-minor criminal offences, in other words serious crimes. There is no guarantee under the Constitution of jury trial in respect of any form of civil procedure. Any entitlement, in that regard, is entirely statutory. In many instances, and certainly as to the ancient common-law civil wrongs, tort law follows definitions which are very similar to the elements of criminal offences. Relevant to this case, false imprisonment consists of elements in both tort law and crime which are interchangeable. A similar comment might be made in relation to the allegations of assault and battery; but more recently assault has come to mean, or has been defined by statute as, a physical intrusion on the person of another without consent; leaving aside issues as to when a person can so consent. Experience has shown that juries have had no difficulty in deciding whether or not sufficient proof exists that the tort of false imprisonment has probably been inflicted on a plaintiff. Similarly, quite difficult questions of law would also be applied by juries in criminal cases in order to reach a verdict in an indictment for false imprisonment.

13. In respect of civil cases, the traditional approach as to the division of responsibilities between judge and jury has always been for a judge to decide as a matter of law what questions should be put to a jury and then to instruct the jury as to the applicable law. This has consistently provided sufficient guidance for juries. They decide the facts in such a way that their answers to questions encapsulate the elements of the tort which has been tried before them. Thus, the legal function of the judge, in the absence of the jury, is to consider, with counsel if necessary, how questions in a civil jury trial may best be framed. At the end of the trial, the jury is addressed by counsel on both sides and is then charged as to the law by the trial judge. The jury then retires to consider the answers to the questions posed. In a civil case these answers take the form of its verdict.

14. Were there to be an issue in this case as to whether Desmond was or was not brought under arrest to the Garda station, supposing that the defence had denied that fact, the first question for the jury would be: was the plaintiff arrested on the occasion in question? Since that is not an issue in the case, it appears that the other factual elements which are disputed may simply be put by the trial judge to the jury in the form of numbered questions. It is not possible to offer any guidance, much less make a decision, as to what these might be, but looming large is the question as to whether there was information upon which the gardaí might reasonably accept the reports made to them; whether that information coupled with the behaviour of Desmond when they arrived at the scene was such whereby they reasonably concluded that he was a person suffering from a mental disorder such that there was a serious likelihood of the plaintiff causing immediate and serious harm to himself or to other persons. The reality of this case is that the gardaí arrested him either in accordance with the legal power or not. These are matters of fact. If the answer to those questions were in the affirmative, damages would not be assessed because the arrest would be lawful. It would appear that were the answer to the jury questions in the negative as to the foundation for the arrest, the jury would go on to assess damages.

15. Issues of law arise on the pleadings which do not give rise to a right to jury trial. These are, firstly, in respect of the alleged wrong of the State in respect of complaints made in the aftermath of the release of Desmond and, secondly, in respect of the elements of the constitutional torts which are claimed to be integral to the case by counsel on behalf of Desmond in order to vindicate his rights to liberty, bodily integrity and privacy. There is no claim that section 12 of the Mental Health Act 2001 infringes the Constitution.

16. Added to the pleas of false imprisonment and assault have been novel constitutional torts. There is no basis in statute whereby such torts, should they exist at all, may be tried by a jury. The legal issue of whether such torts exist or whether this case is in reality one about false imprisonment is a matter of law for the judge. Those torts, if they exist at all, could not be ones covered by any statutory entitlement to trial by jury for civil wrongs preserved by the Act of 1877, since these did not exist prior to 1937. It is thus clear that no right to trial by jury exists for constitutional torts.

17. Secondly, there are the common law remedies, the primary one here being based on an alleged false imprisonment, involving as it does physical restraint; hence trespass to the person or, in other words, assault. Since the Act of 1877, the entitlement to jury trial was preserved through section 94 of the Courts of Justice Act 1924. That entitlement, however, has since been severely curtailed: reduced to a very small category of actions in the High Court through the Courts Act 1988. Section 1 of the Act of 1988 abolishes trial by jury for actions “claiming damages in respect of personal injuries caused by negligence, nuisance or breach of duty”. Similarly excluded from trial by civil jury are claims under section 48 of the Civil Liability Act 1961 and actions arising from section 18 of the Air Navigation and Transport Act 1936, as amended. Included in the abolition of civil jury trial are actions in which “damages are claimed both in respect of personal injuries… and in respect of another matter” and damages claims “other than [for] personal injuries”. Death is, for these statutory purposes, a personal injury which does not carry the entitlement to a civil jury trial. Jury actions are not available, further, where the claim arises “directly or indirectly from an act or omission that also resulted in personal injuries”. An unqualified summary of the reform would be that personal injury actions, which up to 1988 were grist to the mill in legal practice before juries, were now to be tried by a judge alone. To this statutory reform, however, there is a saver. Section 1(3) provides that the removal of the entitlement to civil jury trial is not to apply to:

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

      (b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court … that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespassed the person or both … in respect of that act or omission, or

      (c) a question of fact or an issue arising in the action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespassed to the person or both, as the case may be, in respect of the actor omission concerned.

18. Clearly, actions for false imprisonment and assault are within the province of a jury trial in the High Court. Joining other causes of action to false imprisonment or intentional trespass to the person, assault, may preserve the entitlement to jury trial but only where there is one act or omission at issue in the trial, consisting in terms of the external facts of an assault or of false imprisonment, or both, and the subsidiary torts are allegedly based on that assault or on that false imprisonment. An example would be where it is alleged that as well as an action for deprivation of liberty taking place contrary to the statutory defence offered by a defendant, that the application of the power of arrest was negligent: though here it must be added that this may be a more than unhelpful conflation of separate torts. This is not to state that any such pleading is possible. As to whether adding allegations of other torts to false imprisonment and assault is reasonable having regard to the circumstances determines the balance as to whether the result should be a trial by a judge sitting alone or a trial by a judge sitting with a jury. The reform in section 1 of the Act of 1988 is not to be subverted. This is a matter of assessment by the trial judge as to where, in substance, the nature of the claim lies. What is clear is that the Oireachtas decided that issues of false imprisonment, which are predominantly cases brought by citizens against the State for alleged wrongful arrest by gardaí, and assault cases, which may include such cases or in more recent times have involved allegations of sexual violence, should be tried by a judge with a jury. It is only if the joinder of other torts or causes of action takes the substance and nature of the case away from those core jury-trial torts that a trial should take place with a judge sitting alone.

19. In Sheridan v Kelly [2006] 1 IR 314, the plaintiff sued in respect of sexual abuse at the school which he attended in the junior cycle. In addition, claims for negligence, in failing to become aware of and prevent the abuse, and claims based upon vicarious liability of the school in respect of the same actions were included in the statement of claim. In the High Court, a trial before a judge sitting alone was ordered on the basis that the claim consisted of a personal injury action in respect of negligence. Giving the judgment of the Supreme Court, Fennelly J reversed that decision and ordered a civil jury trial. While the action was one for intentional trespass to the person and for negligence, despite a plea that the was a failure to have in place procedures or measures appropriate for the supervision of teachers, a classic negligence claim, the essence of the plaintiff’s claim was that he had been unlawfully touched by one of his teachers. Further, the claims of assault and of negligence arose out of the same alleged act or omission, the statutory test. At page 319 of the report, Fennelly J rejected the argument on behalf of the defendants in favour of a trial by judge alone and stated:

      I do not think that any of these matters take this case outside the scope of subs. (3)(b). It is clear that the core of the plaintiff’s claim is that he was sexually assaulted by the first defendant. Everything alleged can be traced back to that key allegation. Insofar as the claim is simply based on alleged vicarious liability, there is full correspondence between the damages alleged to flow from the acts of the two defendants. However, the subsection allows a plaintiff, in certain cases, and provided he claims damages as a result of one of the two specified causes of action, namely “false imprisonment or intentional trespass to the person,” or both also to seek jury trial where he pleads that he has suffered damages caused by, for example, negligence. The subsection requires, however, that these two causes of action be linked by a claim that the damages arose “in respect of the same act or omission.” The focus is on the damages and the relevant act or omission which causes them. The same act may give rise to a claim under different legal headings. Acts giving rise to a breach of contract may also, depending on the factual context, constitute negligence or trespass. The subsection does not require that the damages be identical. They may be “claimed in addition, or as an alternative, to the other damages claimed.”

      In the present case, the plaintiff’s claim is that he suffered personal injury as a result of the assaults committed by the first defendant. Any act alleged against the second named defendant is claimed to have led to the same damage. I am satisfied that this claim comes within s. 1 (3)(b) of the Act of 1988. Therefore, the plaintiff is entitled to have his claim heard by a judge sitting with a jury. I would allow the appeal and substitute an order dismissing the notice of motion of the second defendant.

      Nothing in this judgment affects the normal discretion of the High Court to decide whether the different issues in the case are to be tried separately or together, whether by the application of O.18, r;1 of the Rules of the Superior Courts 1986 or otherwise.

20. Were the argument of counsel for the State on this appeal to be correct, it would mean that making a core allegation of false imprisonment but pleading various other wrongs based upon the facts that consisted of that alleged wrong in the guise of different torts, the matter would be placed outside the exemption from the abolition of jury trial. That is not what the legislation provides for. No comment is made here as to the separate section dealing with the preservation of jury trial in defamation actions and the conditions thereof.

21. In addition, it was asserted by counsel for the State that Order 36 Rule 7 of the Rules of the Superior Courts entitles the trial judge to order a trial by judge alone notwithstanding that there is an entitlement pursuant to legislation for the trial to be one by a judge sitting with a jury. That argument cannot succeed. The Superior Courts Rules Committee is not entitled to overrule the provisions of the Act of 1988. That Committee does valuable work in proceedings of the courts through establishing appropriate rules in aid of the proper administration of justice. It is not a legislative body. Furthermore, it is clear that the meaning sought to be attributed to this rule by the State amounts to a misinterpretation; one that is perhaps attractive given the anomalous context in which the rule now exists. When the rule says that the “Court may, if it shall appear desirable, direct trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter” that authority is expressly directed to any action where “without any consent of parties” a trial can take place “without a jury”. Once it is decided as a matter of law that section 1(3) of the Act of 1988 applies, in other words that the action is one which carried the entitlement of a jury trial, the action ceases to be one where without the consent of the parties a trial by judge alone can take place.

Ordering anonymity
22. Article 34.1 of the Constitution makes it imperative that justice “be administered in public” except “in such special and limited cases as may be prescribed by law”. Here, it should be noted that there is a law prescribing an exception of a limited kind contained in section 27 of the Civil Law (Miscellaneous Proceedings) Act 2008. An examination of this legislation confirms that it is a smorgasbord of amendments and provisions covering such things as judicial pensions, making court rules, providing for service of proceedings, allowing assistance in court to those with disabilities, judicial service, control of solicitors and landlord and tenant law. In sum, nothing in the section to be quoted gains anything from analysis in context. There is no context relevant save for Article 34.1. Section 27 provides:

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

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

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

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

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

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

23. Subsection 4 provides for an appeal in the ordinary way. Subsection 5 allows a court to which an order is appealed to vary or revoke the order. While subsection 6 states that an application for an order may be made by a party to the proceedings, under subsection 11 this includes both a party to the proceedings and includes any person called, or proposed to be called, as a witness. While notice “to the other party or parties to the proceedings” is required under subsection 6, this need not be by notice of motion. Letters may be exchanged instead; the necessity for a motion then perhaps becoming apparent if there is no disagreement, though the decision is always that of the judge. The same subsection provides that an application for such an order is to be made “to the judge concerned in chambers.” Subsection 7 makes it a criminal offence, carrying a fine of €25,000 or prison for 3 months or both, to defy such an order and the relevant mental element is specified in subsection 8.

24. The learned trial judge held that section 27 of the Act of 2008 had to be interpreted in the light of the constitutional imperative for public access to hearings. This, Hogan J held, required a restrictive interpretation of this provision so that the full scope of Article 38.1 was not undermined. The constitutional guarantee, the trial judge reasoned, required not only that the doors of the court be open to the public and the press but that all that went on in court could be reported, most especially relevant here as to who was taking the case and who was defending it and, it follows, who were the witnesses. The trial judge was clearly influenced by the ordinary way in which courts conduct their procedure. Anonymity can be abused. In McKeogh v John Doe 1 & ors [2012] IEHC 95, a young man was wrongly identified on social media as not paying a taxi fare. He was subjected to on-line attacks on his good name by those hiding behind the confidentiality of internet service providers. But, the Oireachtas must be taken to be aware of that aspect of human nature and to be able to draw the appropriate balance. Hogan J held that anonymity was not possible in this case. The trial judge especially relied on the judgment of Laffoy J in Roe v Blood Transfusion Service Board [1996] 3 IR 67 at 71 and the decision of McCracken J in Re Ansbacher (Cayman) Ltd [2002] 2 IR 517 and ruling of Clarke J in Doe v Revenue Commissioners [2008] 3 IR 328. All of these decisions, in the absence of the express legislative exception prescribed in Article 38.1 of the Constitution, and in the particular circumstances of those cases in that context, held that anonymity could not be ordered for the litigants in those cases. Here it is different. There is legislation providing for a limited departure from a full open hearing as contemplated by Article 34.1, provided particular terms are judicially adjudicated to have been met. The Oireachtas has fulfilled its function of determining whether it is appropriate that, and in what circumstances, a party to proceedings, plaintiff or defendant, applicant or respondent, or a witness or prospective witness, is entitled to be seen by the public in court, observed by and reported on by the press but, exceptionally, is to be kept unidentified in any written judgment of the court or in media reports. This minor and exceptional departure from open reporting is possible once a series of statutory tests have been met. That is different to the exercise of a jurisdiction dependant solely on Article 34.1 which is not informed by the legislation contemplated by the Constitution. The trial judge was concerned with inequality; a situation where an anonymous person could bring proceedings but a defendant sued in respect of a civil wrong could not have the same privileged exception from the full application of a public and fully publicly reported hearing. At paragraph 33, the trial judge held as follows:

      If one leaves the plaintiff’s personal tragic medical circumstances aside, it would have to be said as a general rule that it would be manifestly unfair if the accuser could advance serious charges anonymously while the accused must face the glare of publicity. There are few things worse in life than having to face the false accusation. Two thousand years of human history has shown that there is no shortage of persons willing to throw the first stone, especially if they can so in safety and with no risk to themselves. The cloak of anonymity assists that process in that it helps to foster an environment where allegations can recklessly be made against a named and publicly identifiable individual with few, if any, personal consequences. Indeed, if empirical proof of this were required, one need not go further than the facts of McKeogh itself. If Article 40.3.2 is to have any real meaning, the courts are accordingly bound to devise procedures which protect the substance an individual’s right to a good name.
25. This is an ordinary damages claim. The plaintiff appellant Desmond is accusing no one. He is making a civil claim through his testamentary guardian Maeve. In essence, he claims to have been wrongly arrested. Were it to be the case that a member of the gardaí in this case had an embarrassing medical condition, an application to restrict the publication of his or her name could be made. Similarly, that could apply to, for instance, a witness who might be a friend of the plaintiff appellant Desmond and who had a similar condition. Section 27 of the Act of 2008 is not challenged as to its constitutionality. The legislation makes a minor adjustment to the fully public nature of court proceedings under Article 34.1. As such it is to be interpreted according to its terms. The application for an order of restriction of reporting was not made in the absence of legislation: it was made because of it. In M A R A (Nigeria) (An infant suing by her mother and next friend O A) v The Minister for Justice and Equality & ors [2014] IESC 71, which postdates the High Court decision in this case, the Supreme Court considered the various decisions on Article 34.1 of the Constitution and summarised the effect of these at paragraph 25 thus:
      It follows that Article 34.1 requires that proceedings in court be open to the public and this entails the attendance of print and broadcast media as part of the scrutiny which judicial conduct and judicial decisions are subject to in a democratic society. The media are entitled to issue, and perform a public service in circulating, fair and accurate reports of litigation. In exceptional cases, for good reasons that take account of the sensitivities of particular kinds of litigation, recognising that without privacy within court proceedings people would be inhibited to such a degree that the right to litigate would be strongly threatened, the Oireachtas is entitled to require that court proceedings be private. In terms of the protection of litigants from public scrutiny, there are degrees. Of these the strongest is, firstly, an in camera, or private, hearing where only the parties, their lawyers and their witnesses may attend together with such directly interested persons as the court permits. An in camera hearing will nonetheless result in a judicial decision and if this is in written form it should be circulated and may be published in such a form that the issues and decision may be reported but not any name or fact that will identify the parties. An in camera hearing may, secondly, be legislated for so as to allow the attendance of accredited members of the press and other media in order to enable proper reporting on behalf of the public even though the public are not to be admitted. The anonymity of the parties is preserved in any report or discussion outside the context of the proceedings. By statute, a lesser form of the protection of the privacy of proceedings, thirdly, involves the doors of the court remaining open to the public but requires that any report of what occurs during the proceedings to be anonymous as to the identities of the parties. Exceptions to the requirement of public hearings under Article 34.1 are ordinarily brought into operation through legislation; to which the courts will give effect in the degree of protection that the terms thereof require. Where, however, the courts consider that there is a legitimate and overriding public interest in the ongoing scrutiny of in camera proceedings, members of the print or broadcast media may be admitted to hearings in controlled circumstances which preserve the anonymity and privacy of litigants, where this is demonstrably possible, while upholding the integrity of their right to litigate. Such decisions are necessarily rare. They arise from the duty of the courts to uphold the special and limited nature of any exception to the requirement for public hearings. Where discretion is given in legislation to allow an in camera hearing, any decision by a court in favour of restricting public access or reporting must be limited to such cases, or such portions of cases, that involve the legitimate interests that are targeted by the legislation and where the failure to restrict the hearing would mean that the administration of justice would be undermined. Where legislation requires anonymity for particular kinds of litigants, that requirement does not need any additional scrutiny: court reports are to be redacted of names and any other fact that might reasonably lead to the identification of parties.
26. As is clear from the MARA case, the lesser form of legislative restriction on the fully open nature of court proceedings, namely the redaction of names on any public report in news media, does not make it necessary for a judge hearing such an application to rebalance rights or, more onerously and apparently contrary to the terms of the relevant legislation, to remove the protection of redaction from a litigant who comes within the terms of s. 27 of the Act of 2008. Only a minor diminution of a full open and fully reported hearing is involved in the application of that section and only then if the party or witness comes as a matter of fact within its terms. Such a provision in law is contemplated by Article 34.1. There is no reason why it should not be applied in accordance with its terms. Section 27 of the Act of 2008 either applies or not. The trial judge held in an earlier case that the section could apply whether the plaintiff or witness had any consciousness of embarrassment; Children’s University Hospital, Temple Street v CD [2011] 1 IR 665 where a baby was being withheld treatment because of a religious conviction of the baby’s parents.

27. On this appeal, one of the main arguments of the State has been that the level of autism suffered by Desmond is such that he would have no awareness of being in court or of his case being reported. An expert report was furnished in that regard. That expert report, while accepted by the trial judge, does not take into account the effect that reporting the name of a plaintiff or a defendant or a witness can have in a society where, globally, people can be harried and undermined by anonymous internet malice. Hogan J predicted the consequences of this by reference to the McKeogh case. As the trial judge correctly identified, Desmond needs routine, loves watching horses, guards a particular patch of ground as a task appointed by his mind and does not need people of malice being attracted to him or intruding on that space. This would be an all too unfortunate and predictable result of the publication of his name, address and medical particulars.

28. Finally, it might also be noted that the change in the law that section 27 of the Act of 2008 represents took place against a background of people being required to litigate and have their names and address reported notwithstanding that they were living dignified lives and choosing to hide, or partly conceal, debilitating and embarrassing conditions. The change brought about by the Act of 2008 has not meant that such plaintiffs or defendants or witnesses get a hearing in camera. Such a hearing is not secret. What it does mean that a much lesser form of protection may be appropriately given as a necessary concession in our society where the terms of that entitlement are met in accordance with the will of the Oireachtas.

29. Construing the section on its own terms, therefore, Desmond is a party to proceedings, he has a medical condition, namely autism, and identifying him as such is likely to subject him to undue stress. This is due to the predictable reaction of others. There is no basis for assuming that his serious and medically proven condition will not impact on the ease with which Desmond can take a case. In reality, he is under a disability. The vast majority of litigants and witnesses are not. The State also argued on this appeal that anonymity should not be granted to Desmond because more witnesses might emerge through reading the reports and volunteering to give evidence for the defence side of the case. In that respect, it is claimed that the “interests of justice” require that such an order not be made. The focus of the argument is correct. The test as set out in s.27(3)(c) requires that such an order should be “prejudicial to the interests of justice”. That does not either require or allow a recasting of the section so to take any considerations of open justice into account under Article 34.1. Reporting restrictions, it is claimed, might result in a witness being unaware of proceedings and so undermine a fair hearing. That inventive argument cannot be validly made on the pleadings in this case. On the basis of the defence, the gardaí claim to have had reports requiring their intervention. On arriving at the scene where the stick waving and chasing had, as had been reported to them, apparently taken place, they apparently reached a conclusion that they should arrest Desmond because of his mental condition and it being a danger to himself and others. The application of that power of arrest is what this case is about. The validity of those actions is to be judged according to the reports to the gardaí and their own observations. There is no danger of prejudice to justice by Desmond being named in reports of proceedings in that way instead of under his own name and address.

Structuring this case
30. This is now the fourth written judgment from the Superior Courts in this case. It is a simple case. The purpose of the courts established under the Constitution is to provide a means of access to persons who claim to have a grievance that is legally justiciable. Of the essence of that function is the identification and pursuit of core issues in a case.

31. There will be an order requiring that Desmond be not identified in the media when this case comes on for trial or in any reporting of this any other decision of the courts. His assumed name may be used instead and the place of the incident may be stated to be in the West of Ireland.

32. The time-honoured manner whereby simple questions are put by the trial judge to the jury trying a civil case and a decree is made either in favour of a plaintiff or dismissing a case consequent upon those answers should be followed. During the hearing of this appeal, the Court was told that a new statement of claim has now been delivered excluding claims in negligence, but this pleading was not seen on this appeal. Whatever its import, which cannot now be commented upon, there remain elaborate and legally complex claims that the tort of false imprisonment and assault are inadequate to protect the constitutional rights of Desmond. There further exist claims that the European Convention on Human Rights establishes other, and presumably wider, obligations that were somehow allegedly infringed. This case needs to return to what it is, in fact, about.

33. Both sides agree that this young man Desmond was arrested. The ostensible justification was based upon the report of facts which may be the subject of dispute that a jury will have to resolve. Whatever decision is reached by the jury, based upon whatever questions are put by the trial judge to the jury, will impact upon the core defence which is that section 12 of the Mental Health Act 2001 justified arrest in those circumstances. If there are wider obligations then are already defined in tort law, in respect of whatever other claims are also pleaded arising out of the same incident, these will need to be decided by the trial judge since there is no right to trial by jury in respect of these alleged torts. Once these are disposed of, the jury may be asked to decide the facts relevant to the core claim; was a power of arrest exercised in good faith by members of An Garda Síochána in within the terms of a statutory power.

34. The plaintiff appellant Desmond is entitled by statute to anonymity in the trial and of any preliminary step of these proceedings and any report thereof. A jury will at that trial have to answer questions put to them, as framed by the trial judge, relating to the validity of Desmond’s arrest. Any other claimed civil wrongs under the Constitution or the European Convention on Human Rights, if these exist at all, are entirely within the decision of the trial judge.

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URL: http://www.bailii.org/ie/cases/IESC/2015/S44.html