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Cite as: [1997] IEHC 212, [1997] 2 IR 141

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W v. Ireland (No.2) [1997] IEHC 212; [1997] 2 IR 141 (11th April, 1997)

High Court

HMW (nee F) v Ireland, AG and Government of Ireland

1995 No 4114P

11 April 1997

COSTELLO P

FACTS.

(1) On the 23 April 1993 nine warrants for the arrest of one Father John Gerard "Brendan" Smyth were issued in Northern Ireland. They related to sexual offences alleged to have been committed by the accused in Northern Ireland between the years 1982 and 1987. The warrants were forwarded to the Commissioner of An Garda Siochana for execution by him pursuant to the provisions of the Extradition Act, 1965 (as amended), the accused at that time being resident in the State. He, in turn, forwarded them to the office of the Attorney General (as he was required to do under the Act) where they were received on the 30 April 1993. Under the provisions of the Act, as amended (provisions which will be considered in greater detail later) the Attorney General is required to give a direction that the Commissioner should not endorse the warrants for execution unless the Attorney General, having considered such information as he considers appropriate, is of the opinion that (a) there is a clear intention to prosecute or to continue the prosecution of the person whose extradition is requested and (b) such intention is founded upon the existence of sufficient evidence.

(2) The plaintiff in these proceedings and other members of her immediate family and relatives had been victims of the accused's sexual crimes to which the warrants related.

(3) Before the Attorney General had given any direction to the Commissioner relating to the endorsement of the warrants the office of the Attorney General was informed on the 6 December 1993 that the accused intended to return to Northern Ireland to stand trial in respect of the charges referred to in the warrants. He did so on the 21 January, 1994, on which day he appeared at Belfast Magistrates Court. On the 28 June 1994 he was convicted at Belfast Crown Court of 17 charges of sexual abuse (in respect of some of which the plaintiff had been a victim) and was sentenced to 4 years imprisonment.

(4) By summons of the 1 June 1995 the plaintiff instituted these proceedings in which she joined Ireland, the Attorney General, and the Government of Ireland as defendants. In her Statement of Claim she pleaded that the Attorney General owed her a duty of care and/or "a constitutional obligation" to consider the execution requests and speedily to process same in order to ensure that the said Father Smyth was quickly brought to justice". It was claimed that in breach of the said duty of care and in breach of the said constitutional obligation the Attorney General "wrongfully and without lawful excuse failed, neglected and refused to endorse the said warrants for execution within the State", (paragraph 10). It was further pleaded that a similar statutory duty was imposed on the Attorney General by the provisions of the Extradition Acts 1965 and 1987 (paragraph 11). She claims that as a result of the breaches of duty, breaches of constitutional obligation and duty and breach of statutory duty she suffered loss and damage and that the loss and damage was a foreseeable consequence of the wrongful acts and omissions of the Attorney General (paragraph 12). She says that the failure to "endorse the warrants for execution and the delays in bringing the accused to trial caused her enormous shock and distress, that the continuing emotional upset and stress and consequential psychiatric problems caused by the sexual abuse were greatly aggravated by the failure of the Attorney General to take adequate steps to endorse the warrants for execution and bring the perpetrator of the offences to justice. She claims damages for the personal injuries she suffered.

(5) A defence denying liability was filed on behalf of the defendants on the 10 July 1995.

PRELIMINARY ISSUES:

On the 11 November 1996 it was ordered that without further pleadings the following preliminary issues should be tried;

(a) Whether the second named defendant (the Attorney General) owed to the plaintiff a duty of care at common law to consider the said request as is alleged by the plaintiff at paragraph 10 of the Statement of Claim.

(b) Whether the defendants or any of them owed to the plaintiff a constitutional duty or obligation under Article 40.3 and/or Article 41 of the Constitution of Ireland or otherwise to consider the extradition request the subject of these proceedings and to process speedily the said request as is alleged by the plaintiff at paragraphs 10 and 13(a) of the Statement of Claim herein.

(c) Whether the second named defendant owed to the plaintiff a duty by reason of the provisions of the Extradition Acts, 1965-1987 (and in particular by reason of section 2 of the Extradition (Amendment) Act, 1987) to consider the extradition request the subject of these proceedings and to process speedily the said request as is alleged by the plaintiff at paragraph 11 of the Statement of Claim herein".

EXTRADITION ACTS.

To adjudicate on these issues I must firstly refer to the relevant statutory provisions.

The Extradition Act, 1965.

Special arrangements are made in Part 3 of the 1965 Act relating to the extradition of accused persons pursuant to requests from inter alia Northern Ireland. Where a warrant has been issued by judicial authority in Northern Ireland for the arrest of a person accused in Northern Ireland of an offence as specified in the section and if on production of the warrant to the Commissioner of the Garda Siochana it appears to the Commissioner that the person named in the warrant may be found in this State then the Commissioner is required, subject, to the provisions of Part III of Act, to "endorse the warrant for execution" (section 43).

The Act contained restrictions on endorsement in section 44 which are not relevant for the purposes of this case. But a further restriction was enacted by section 2 of the Extradition (Amendment) Act 1987 which amended Part III of the 1965 Act by inserting new sections as follows;

Section 44(A).

This provides that a warrant for the arrest of a person accused of an offence in Northern Ireland "shall not be endorsed for execution under this part if the Attorney General so directs".

Section 44(B).

This provides that a direction of the Attorney General under section 44(A) not to endorse the warrant.

"shall be given unless the Attorney General, having considered such information as he deems appropriate, is of the opinion that --

(a) there is a clear intention to prosecute or, as the case may be, to continue the prosecution of, the person named or described in the warrant concerned for the offence specified therein in a place in relation to which this Part applies, and

(b) such intention is founded on the existence of sufficient evidence".

I have the following observations to make on these provisions;

The plaintiff has pleaded that the Attorney General was under a duty "to endorse for execution within the State all extradition warrants emanating from within the United Kingdom" and it was further pleaded that he failed to endorse the warrants referred to in the pleadings. This is not an accurate description of the Attorney General's functions. The endorsement of the warrant is made by the Commissioner (section 43) but he may not make the endorsement unless the Attorney General directs him to do so. The Attorney General's function under section 44(B) is to reach the opinion referred to in that section and under section 44(A) to give or not to give the direction as the case may be. I will examine this section in greater detail later in this judgment.

THE FIRST ISSUE.

(a) A duty of care at common law.

The first issue is whether in the exercise of his statutory function the Attorney General owed a duty of care at common law to the plaintiff. It has been agreed by the parties that I should determine this issue in accordance with the principles established in Ward v McMaster (1988) IR 337.

This was a case in which it was alleged that a housing authority owed a common law duty of care to the plaintiff in the exercise of its powers under the Housing Act 1966. Briefly, what had happened was this. The plaintiff had purchased a bungalow from the first named defendant, who had built it. The plaintiff did not have it professionally surveyed but had applied to the defendant housing authority for a loan under the 1966 Act. This had been granted and secured by way of mortgage. The housing authority retained a valuer to value the premises but he had no qualifications in building construction and he found no defects in them, reporting that they were in good repair and worth £25,000. This was wholly erroneous. After the plaintiff went into occupation the bungalow was found to be seriously defective, a qualified engineer concluding that it was structurally unsound, a source of danger and a risk to health. He advised the plaintiff and his wife to abandon it and they did so. The plaintiff sued the builder/vendor, the Council and the valuer. He succeeded against the builder/vendor and the Council but not against the valuer. The Council's appeal to the Supreme Court was dismissed.

As will appear later the courts conclusions were based on the provisions of the Housing Act 1966 and the regulations made thereunder and I should briefly refer to them. The 1966 Act empowered a housing authority to lend money for the purpose of acquiring or constructing a house. Regulation 12 of regulations adopted in 1972 required that a housing authority, before making a loan, should be satisfied that the value of the house was sufficient to provide adequate security for the loan, "the value of the house" for the purpose of the Regulation being the amount which in the opinion of the housing authority the house if sold on the open market might reasonably be expected to realise. The scheme adopted by the defendant housing authority to implement its statutory powers provided that no advance would be made by the Council until it was satisfied as a result of the Council's valuer as to the actual value of an existing house. The scheme also made clear that applications for loans under the Act of 1966 would only be considered by persons who were unable to obtain loans from commercial agencies and whose circumstances would otherwise necessitate their being re-housed by the Council.

In his judgment (with which the Chief Justice and Griffin J agreed) Henchy J pointed out that it was necessary for the plaintiff to show that the relationship between him and the Council "was one of proximity or neighbourhood which cast a duty on the Council to ensure that, regardless of anything left undone by the plaintiff, he would not end up as the mortgagor of a house which was not a good security for the amount of a loan". He pointed out that the Council should have realised that it would be in breach of their statutory functions if they granted a loan for the purchase of a house which turned out to be uninhabitable, that the consequences to the plaintiff of a failure on their part to value the house properly should have been anticipated by the Council, that a borrower like the plaintiff could not have reasonably been expected to incur the expense of a structural survey of the house, that the Council should have foreseen that the plaintiff's attitude would be, that the Council would have the house approved by a surveyor and he concluded that "in the light of the special relations between the plaintiff and the Council I consider that apart from their public duty in the matter the Council owed a duty to the plaintiff to ensure by a proper valuation that the house would be a good security for the loan" (p 342).

In his judgment (with which the Chief Justice, Walsh J and Griffin J agreed) McCarthy J referred in detail to the loan scheme and then reviewed the authorities in Northern Ireland and in England and Australia to which he had been referred. In particular he referred to Anns v Merton London Borough (1978) AC 72 and to a well-known passage in the judgment of Lord Wilberforce (at pages 751 and 752) (which he stated he did not "seek to dilute") as follows:-

"the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations where a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrong doer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter -- in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of persons to whom it is owed or the damage to which a breach of it may give rise".

The judgment of McCarthy, J then went on to review the views expressed in later cases in England which analysed the test propounded by Lord Wilberforce and heavily qualified it as well as Court's decision in the case. He rejected these criticisms and went on (p 349).

"Whilst Costello, J essentially rested his conclusions on the "fair and reasonable" test, I prefer to express the duty as arising from the proximity of the parties the foreseeability of the damage, and the absence of any compelling exemption based upon public policy".

Turning to the issue as to whether or not the housing authority owed a duty of care to the plaintiff he pointed out that the proximity of the parties was clear, that they were intended mortgagors and mortgagees, that the proximity had its origin in the Housing Act 1966 and consequent loan scheme, that the Act imposed a statutory duty on the Council and it was in the carrying out of that statutory duty that the alleged negligence took place. He went on;

"It is a simple application of the principle in Donoghue v Stevenson (1932) AC 562 confirmed in Anns v Merton London Borough (1978) AC 72 and implicit in Siney v Corporation of Dublin (1980) IR 400 that the relationship between the first plaintiff and the County Council created a duty to take reasonable care arising from the public duty of the County Council under the statute. The statute did not create a private duty but such arose from the relationship between the party".

Turning then to the issue of "reasonable foreseeability" he concluded that the officers of the Housing Authority ought to have contemplated that the breach of duty of care would cause the plaintiff injury and that as there were no considerations to negative or limit the scope of the duty the plaintiff was entitled to damages for its breach.

The parties in the present case have, as I have said, agreed that I should approach this case by applying the test approved by McCarthy, J and consider whether (a) there was a relationship of proximity or neighbourhood between the Attorney General and the plaintiff, (b) if so, whether the relationship was such that in the reasonable contemplation of the Attorney General carelessness on his part would be likely to cause damage to the plaintiff and (c), if these questions are answered affirmatively are there any considerations which ought to negative reduce or limit the scope of the common law duty of the Attorney General.

Before doing so there are two observations I should make about Ward v McMaster.

(1) I am, of course, aware that subsequent to the decision in Ward v McMaster criticisms made of it and the test suggested by Lord Wilberforce in the English courts to which reference was made in the judgment of McCarthy, J. These were carried a step further by the House of Lords in Murphy v Brentwood [1991] AC 398 in which the Anns decision was overruled and it was decided that the House of Lords should depart from Anns "insofar as it affirmed a private law duty of care to avoid damage to property which causes present or imminent danger to the health and safety of owners or occupiers, resting upon local authorities in relation to their function of supervising compliance with building by- laws or regulations . . ." (p 457). Irish law has therefore parted company with English law but I am by no means certain that the departure is a major one. The view of the Irish courts has been that Anns was a "confirmation" of the long established principles of the law of tort contained in Donoghue v Stevenson and was not (as some commentators in England seem to consider) a major innovation in the law of tort.

(2) Secondly, as Ward v McMaster makes it clear, when the court is required to consider whether a duty of care at common law arises in the exercise of statutory duties, powers or functions the issue is largely determined by the scope and nature of the relevant statutory provisions. This is underlined in two decisions in which the principles established in Ward v McMaster were considered in the Supreme Court.

Sunderland v Louth County Council (1990) ILRM 658 was a case in which the Supreme Court again had to consider whether a common law duty of care was imposed on a local authority -- this time in its capacity as a planning authority. The Louth County Council had granted permission for the erection of a dwelling house to a person who had no building experience. When the house was built he decided to sell it. It was then discovered that the planning permission did not apply to the site on which the house had been built and he applied for and obtained permission for retention of the house. The plaintiff purchased the house from the builder but because of the unsuitability of the site on which it was built and the manner in which the septic tank had been constructed the house and garden were liable to flooding and the house proved uninhabitable. The plaintiff sued the architect (who had reported on the condition of the house) and the Council. The claims against both defendants were dismissed and the plaintiff's appeal to the Supreme Court against the decision to dismiss the claim against the Council. The appeal failed. The unanimous decision of the court was delivered in a judgment by McCarthy J. The court held that a planning authority in the exercise of its powers under the Local Government (Planning and Development) Act 1963 owed no duty of care at common law towards the occupiers of buildings erected in its functional area to avoid damage due to defective sighting and construction. In arriving at this conclusion McCarthy, J pointed out that the Council's liability to the plaintiff depended on the relationship that existed between the plaintiffs and the Council, namely "was it such as to establish a duty of care in favour of the plaintiffs as occupier over and above such duty as rested upon the Council in respect of the public as a whole, pursuant to its statutory obligations imposed on the Council by the Planning Act". He pointed out that in Siney v Dublin Corporation a legal relationship of landlord and tenant existed between the party and in Ward v McMaster a mortgagor and mortgagee relationship existed, that in both these cases the statutory duty of the local authority arose under the Housing Act 1966 which, he said, was an act which "is demonstrable and unequivocally designed towards the protection and improvement of the housing conditions of persons who are not able by their own resources to provide it for themselves". He pointed to the fundamental difference between planning legislation and housing legislation and that the first is "regulatory or licensing according to the requirements of the proper planning and development of the area" but the second is a provision "in a social context for those who are unable to provide for themselves". He observed that the "watchdog role" created under the Planning Act is for the benefit of the public at large and that the Planning Act was enacted to make provision in the interests of the common good for the proper planning and development of cities towns and other areas". He concluded;

"The Act in conferring statutory powers on planning authorities imposed on them a duty towards the public at large. In my view, in conferring those powers the Oireachtas did not include a purpose of protecting persons who occupied buildings erected in the functional area of planning authorities from the sort of damage which the plaintiffs have suffered. This being so, the Council in the exercise of those powers, owed no duty of care at common law towards the plaintiffs" (p 63).

The same legal issue arose in Convery v Dublin County Council (Supreme Court, unreported, 12 November 1996). In that case the plaintiff's claim against the County Council arose from a serious traffic problem in the housing estate in which she lived. She claimed that the very large volume of traffic amounted to a nuisance and she claimed an order directing the Council to abate the nuisance. She also claimed that the volume of traffic resulted from a breach of duty of care which the Council owed to her at common law. She succeeded in the High Court but lost in the Supreme Court. In the judgment of the court (delivered by Keane, J), it was pointed out that the plaintiff could only succeed if she established that the Council had been guilty of an actionable tort and the court held that the Council could not be liable for a public nuisance as the traffic did not originate in any premises owned or occupied by the County Council and was not generated as a result of any activities carried on by them on land in the area. "To treat the County Council, in these circumstances as being the legal author of a public nuisance would be entirely contrary to principle and wholly unsupported by authority".

As to the claim founded on negligence, it was pointed out that the plaintiff had to establish that a duty of care towards her existed. In deciding whether or not such a duty existed the court referred to the decision in the High Court and the judgment of McCarthy, J in the Supreme Court in Ward v McMaster. Commenting on the judgment of the Supreme Court it was pointed out that;

"The fact that the plaintiff belonged to a particular category of persons for whose benefit the powers and duties of the housing authority under the Act were to be exercised -- ie applicants for loans who could not obtain such assistance from commercial institutions -- was of critical importance in determining whether they owed him a duty of care in the exercise of those powers and duties".

And the judgment noted the sharp contrast in that case to the decision in Sunderland v McGreevy where the court concluded that the statutory powers created under the Planning Acts did not confer any duty of care at common law towards the plaintiffs. Applying the principle adopted in Ward v McMaster the court concluded that;

"The plaintiff has failed to establish that there was a relationship between her and the County Council which created a duty to take reasonable care arising from their public duty under any statute. The powers and duties of the County Council as planning authority and roads authority are vested in them in order to ensure the proper planning and development of their area and the provision and maintenance of appropriate road network in that area. Whilst the exercise of those powers and duties can be regulated by the High Court by means of the Judicial Review process so as to ensure that they are exercised only in accordance with law, the plaintiff does not belong to any category of persons to whom the Council, in the exercise of those powers owed a duty of care at common law".

A brief reference should also be made to Madden v The Irish Turf Club & Others (Supreme Court, unreported, 17 February, 1997). This was a case in which the plaintiff, unsuccessfully, claimed that the Irish Turf Club and the Irish National Hunt Steeplechase Committee owed him a duty of care arising from a "jackpot bet" he had placed on the tote at a race meeting on the 12 January 1989. The alleged duty did not arise from the operation of a statute and the relevance of the case for present purposes is that in arriving at its conclusion the Supreme Court, once again, applied the decision in Ward v McMaster.

Finally, on this aspect of the case, I should note two further decisions of the High Court in which, once again, a plaintiff failed to establish a common law duty of care arising from the exercise of statutory powers.

McMahon v Ireland, the Attorney General, and the Registrar of Friendly Societies [1988] ILRM 610 was a case in which the plaintiff had lodged money in a Friendly Society which went into liquidation. A claim for damages for negligence was brought against, inter alia, the Registrar of Friendly Societies. Blayney, J (at page 613) pointed out that the first issue to be considered was whether the Registrar owed a duty of care to the plaintiff and that this issue involved him;

"considering whether there was a sufficient relationship of proximity or neighbourhood between the Registrar and prospective depositors as to place the Registrar under a duty of care towards persons came within that class, as did the plaintiff".

The court held that no such duty existed and the claim against him was dismissed.

John C Doherty Timber Limited v Drogheda Harbour Commissioners [1993] 1 IR 315 was a case in which the plaintiff claimed that the Drogheda Harbour Commissioners owed it a duty of care in the exercise of their statutory duties as Harbour Commissioners under the Harbour Act 1946. Under that Act they were obliged to take all proper measures for the management, control and operation of their harbour and all proper measures for the maintenance and operation of all works, structures, bridges, equipment and facilities under their control (section 47). The plaintiffs, who were timber merchants, had for many years received consignments of shipments of timber at the port. Along with others they were permitted to unload the timber and leave it on the quayside at the harbour. The area was unenclosed and the public had access to it. A consignment of timber was left by the plaintiff on the quayside for several days after it had been unloaded when it was deliberately set on fire by children. The plaintiffs claim that the Harbour Commissioners owed it a duty at common law failed. In the course of his judgment Flood, J referred to the judgment of Lord Wilberforce in Anns to the decision of McCarthy, J in Ward v McMaster and concluded as that the reality of the relationship between the Harbour Commissioners and the plaintiff was a bare permission which carried no further obligation of care on the part of the defendant there was no common law duty of care imposed on the Harbour Commissioners.

Conclusion.

My conclusions on the issue as to whether or not the Extradition Acts has imposed on the Attorney General a common law duty to the plaintiff to consider the extradition request and process it speedily for breach of which the plaintiff is entitled to damages for any injury she thereby suffered, or as follows;

(a) The Extradition Act, 1965 (as amended) imposed no statutory duty on the Attorney General in relation to victims of the crimes referred to in the warrant which he was required to consider. The statute imposed a function on him (not a duty or a power). His statutory function is (a) to consider whether or not there is a clear intention on the part of the authorities in Northern Ireland to prosecute the person named in the warrant for the offences with which he is charged and (b) to consider whether such an intention (if it exists) is founded on sufficient evidence (section 44(B)). Having satisfied himself on these points he is then required to decide whether to give a direction to the Commissioner under section 44(A). His function is a professional one which the Oireachtas requires him to perform as part of the extradition process relation to persons accused of crimes committed in Northern Ireland. In considering whether or not there is a clear intention to prosecute the person named in the warrant the circumstances of the victim of the crime are in no way relevant. Likewise in considering whether or not the intention to prosecute is founded on the existence of sufficient evidence the circumstances of the victim are in no way relevant. The statute conferred a public professional function on the Attorney General which created no relationship of any sort between him and the victims of the crimes referred to in the warrants he was considering. This is in striking contrast to the statutory provisions of the Housing Act 1966 which were designed to assist a class of persons and which the Supreme Court held in Ward conferred a special relationship between them and the housing authority which resulted in imposition of a common law duty of care.

In the absence of any relationship between the plaintiff and the Attorney General I must hold that the Extradition Acts imposed no common law duty of care on the Attorney General in relation to the plaintiff.

(b) Public Policy and a common law duty of care.

There is a further and compelling reason why the court should decide that no common law duty of care existed in this case. Even if there had been a sufficient relationship of proximity between the Attorney General and the plaintiff and even if the kind of injury of which the plaintiff complains was reasonably foreseeable in my opinion it would be contrary to public policy to impose a duty of care on the Attorney General.

The principles in Ward v McMaster (and indeed in the pre-Ward law of torts) recognise that on the grounds of public policy the law may not recognise the existence of a duty of care. Of course, only in exceptional cases will the court deny a right of action to a person who has suffered loss on the ground that it would not be in the public interest to allow it. In considering whether the Attorney General should be protected from actions of negligence the court is balancing the hardship to individuals which such a rule would produce against the disadvantage to the public interest if such a rule existed. How the court carries out this balancing exercise is illustrated in the judgments in the House of Lords in Rondel v Worsley [1969] 1 AC 191 in which the long established immunity from actions for negligence which barristers enjoyed was re-considered and justified on the grounds of public policy. In the course of his judgment Lord Reid pointed out that every counsel has a duty to his client to act fearlessly in his interests but that as an officer of the court concerned in the administration of justice he has an overriding duty to that court to the standards of his profession and to the public. A barrister must not mislead the court, nor cast aspersions on the other party for which there was no basis in the information in his possession, must not withhold authorities or documents which may tell against his client but which the law or the standards of his profession require him to produce. Because the barrister is required to put his public duty before the apparent interest of his client the public interest requires that on the grounds of public policy the barristers immunity from suit be maintained (see pages 227, 228).

For similar reasons Judges are immune from actions for negligence.

"The freedom from action and question at the suit of an individual is given by the law to Judges not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be". (Garnett v Ferrant) (1827) 6 B and C 611.

This case was quoted with approval and applied recently in this country in Deighan v Ireland [1995] 2 IR 56. The principles were again applied in England in which it was held that on the grounds of public policy a duty of care ought not to be imposed on police investigating a crime (Hill v Chief Constable of West Yorkshire [1989] AC 53. And, of particular relevance to the issues in this case, it has been held in England that on the grounds of public policy the Crown Prosecuting Service can not be sued in negligence (see Elguzuoli-Daf v Commissioner of Police of the Metropolis [1995] 1 All ER 833. The reasons why this immunity should be granted were explained as follows (p 842);

"That brings me to the policy factors which in my view argue against the recognition of a duty of care owed by the CPS to those it prosecutes. Whilst it is always tempting to yield to an argument based on the protection of civil liberties, I have come to the conclusion that the interests of the whole community are better served by not imposing a duty of care on the CPS. In my view such a duty of care would tend to have an inhibiting effect on the discharge of the CPS of its central function of prosecuting crime. It would in some cases lead to a defensive approach by prosecutors to their multifarious duties. It would introduce a risk that prosecutors would act so as to protect themselves from claims of negligence . . ."

In Canada the question of prosecutorial immunity from suit in an action for malicious prosecution was considered by the Supreme Court in Nelles v Ontario (60 DLR (Fourth) 609). Whilst referring to the authorities in Canada and in the United States in which immunity from actions of negligence was conferred by the courts on prosecutorial authorities the court held that immunity from an action for malicious prosecution should not be granted. The case, however, did not decide that such an immunity would not exist in relation to actions for negligence.

Turning, then, to the facts of this case it seems to me that the denial of a right of claim for damages for negligence on the grounds of public policy arises from the functions which the Attorney General is called upon to perform in the public interest and the consequences on his ability properly to perform them should the alleged duty exist. By conferring an important role on him in the extradition process the Oireachtas has involved him in a significant way in ensuring that a proper compliance with the State's international obligations in the field of extradition is achieved. The statute requires him to weigh the information made available to him relating both to the intention to prosecute the person named in the warrant and also the evidence on which the intention to prosecute is based and should the information he obtains not be sufficient he is required to request further information. If in carrying out this function he is also under a duty of care to the victim of the crime referred to in the warrant not to delay there is a risk, which I do not think it is in the public interest he should be asked to run, that a conflict may arise between the proper exercise of his public function with the common law duty of care to the victim which might result in an improper exercise of his statutory functions.

There are further compelling reasons why in the public interest the duty claimed by the plaintiff in this action should not be allowed. If a duty under the 1965 Act exists it must logically follow (a) that the Attorney General would be under a similar duty in respect of any prosecutorial functions conferred on him by section 5 of the Prosecution of Offences Act, 1974 (b) that in exercising his prosecutorial functions under that Act the Director of Public Prosecutions would owe a like duty to all victims of crimes in the cases in which he is considering the institution of prosecution. Because of the inhibiting effect on the proper exercise by the Attorney General and the Director of Public Prosecutions of their prosecutorial functions it would be contrary to the public interest that a duty of care at common law be imposed on them. So to conclude is not to submit to a "flood gates" argument of doubtful validity -- it is to accept the logical consequences should the duty of care at common law be imposed in the execution by the Attorney General of his functions under the 1965 Act.

In reaching these conclusions I have not ignored the arguments advanced on the plaintiff's behalf. It was urged that to impose an immunity on the Attorney General against claims for damages for negligence would be contrary to the State's constitutional obligations as established by the Supreme Court in Ryan v Ireland [1989] IR 177). This, however, was not a case in which issues relating to immunity from suit on public policy grounds arose. The plaintiff, a soldier injured in the Lebanon whilst serving in the United Nations force sued Ireland and the Minister for Defence for damages for negligence. The issue was whether under Irish common law an immunity from suit by a serving soldier in respect of operations consisting of armed conflict existed. The court held that no such immunity existed but that if it did it would be inconsistent with the States guarantee to respect and vindicate the personal rights of the citizen under Article 40 of the Constitution. The Supreme Court did not decide that in no case could the law confer immunity from suit on a constitutional officer and, as already pointed out, the Irish courts have recognised the validity of such a rule in relation to Judges carrying out their judicial functions. Laws may limit the exercise of protected rights and in each case when the claim is raised it is a question for the court to decide where, in the interests of the common good, the balance should lie.

It was further argued that even if the Attorney General was immune from suit on the grounds of public policy this did not necessarily deprive the plaintiff of a claim for damages against the State arising from his negligent act. Reference was made to the case of Walsh v Ireland and the Attorney General (unreported, Supreme Court, 30 November 1994) in which the plaintiff successfully sued Ireland for damages as being vicariously liable for the negligent act of members of the Garda Siochana in arresting the plaintiff on foot of a warrant issued by someone bearing the same name as the plaintiff. It was argued that a victim like the plaintiff in the present case who suffered injury due to the negligent act of the Attorney General should be at liberty to sue the State even though an action against him personally was not maintainable. This would clearly be a novel form of immunity. It would mean that the wrongdoer (in this case the Attorney General) would be immune but the State (assuming the State's liability being a vicarious one or direct if the wrongdoer was an organ of the State) would not be immune. But it is an argument which does not answer the basic reason why immunity in the present case should be granted. It is not correct to assume (as this argument does) that if the Attorney General was relieved of personal liability to compensate a victim to whom he owed a duty of care then the prejudicial effect of the existence of such a duty would disappear. The Attorney General would still be conscious that he owed a duty of care to the victim, that the State could be sued if he breached it and I think this knowledge would have the same disabling effect as a law which conferred personal liability on him for damages.

Finally it was urged that the court should not follow the English decisions to which I have referred because they were decided after the House of Lords overruled Anns in Murphy v Brentwood [1991] AC 398. But the reversal of Anns had no effect on the principles to be applied when the court considers a claim for immunity from suit. They were applied by the courts in England in the cases to which I have referred without any reference to Anns and whilst, of course, they are not binding on this court they serve usefully to illustrate one of the principles which Ward concluded should be applied in this country when considering whether or not it would be proper for the court to impose a private duty of care on the exercise of a public function.

THE SECOND ISSUE.

The second issue is this;

"Whether the defendants owed the plaintiff a constitutional duty or obligation under Article 40.3 and/or Article 41 of the Constitution or otherwise to consider the extradition request the subject of these proceedings and to process speedily the said request as is alleged by the plaintiff in paragraphs 10 and 13A of the Statement of Claim".

Paragraph 10 of the Statement of Claim claimed that the Attorney General owed a "constitutional obligation to the plaintiff to consider the extradition request and speedily to process it to ensure that Father Smyth was quickly brought to justice" and it was claimed that there was a breach of this constitutional obligation and duty in that the Attorney General "wrongly and without lawful excuse failed, neglected and refused to endorse the said warrants for execution within the State". Paragraph 13A claimed that the acts and omissions of the Attorney General "have infringed the constitutional rights of the plaintiff and caused her damage". Sub-paragraph A gave particulars as follows;

"The defendants herein owed the plaintiff a constitutional duty by reason of Article 40.3 and Article 41 of the Constitution of Ireland to defend and vindicate her bodily integrity and to protect the plaintiff's family in its constitution and authority. In the context of the present case the said constitutional requirements obligated the defendants, their servants and agents to process the said extradition warrants with all due speed and dispatch to ensure that the person who had violated the bodily integrity of the plaintiff and who had infringed the family rights of the plaintiff are swiftly brought to justice".

The issue fixed by the court refers both to Article 40.3 and Article 41. Article 41 deals with the Family but the plaintiff's counsel has expressly stated that the plaintiff is no longer maintaining a claim for damages by reason of the breach of this Article. Her claim is limited to a breach of Article 40.3 which provides as follows;

"(1) The State guarantees in its laws to respect, and, so far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

(2) The State shall, in particular, by its laws protect as best it may from unjust attack and in the case of injustice done, vindicate, the life, person, good name, and property rights of every citizen".

It is well established that the right to bodily integrity is one of the personal rights which, although not specifically mentioned in this Article are nonetheless protected by Article 40.3. The plaintiff's case is that there existed a duty imposed on the defendants not to infringe her right to bodily integrity and that this involved an obligation to deal with the extradition warrants speedily, an obligation which the delays of the Attorney General breached, for which damages are recoverable.

(a) The existence of the asserted Constitutional duty.

The duty which it is alleged the "defendants" (that is, Ireland the Attorney General and the Government of Ireland) owed to the plaintiff was to process the extradition requests speedily. Whilst there is of course a general duty on the State (imposed by the Constitution) to defend and vindicate by its laws the citizen's constitutional rights what is alleged in this case is a specific constitutional duty arising under the provisions of the Extradition Act, 1965 (as amended). For reasons already explained this Act did not impose a duty of care on the Attorney General towards the plaintiff and for similar reasons I do not think that it imposed a duty on him (or on any of the other defendants) not to infringe the plaintiff's right to bodily integrity. The Act created no relationship of any sort between any of the defendants and the plaintiff and no circumstances of any sort existed by which a duty to take into consideration the plaintiffs bodily integrity (and so speedily consider the extradition warrants) existed.

There is as I pointed out, a second reason why the Attorney General at common law owed no duty of care to the plaintiff arising from considerations of public policy. The same reasons apply when considering the claim based on the Constitution. The rights guaranteed under the Constitution are not absolute rights (with the exception of an implied right not to be tortured which must be regarded as an absolute right which can never be abridged) and their exercise and enjoyment may be, and frequently are, limited by reason of the exigencies of the common good. I concluded, applying well established principles of the law of tort, that it would be contrary to public policy in this case to impose on the Attorney General a duty of care towards the plaintiff. The reasons why no common law duty existed also meant that no constitutional duty existed, because the exigencies of the common good (that is, in this case the need to allow the Attorney General to carry out his important public functions without the threat of an action for damages for negligence at the suit of a private individual) justifies the court in depriving the plaintiff of a claim for damages for breach of duty not to infringe her right to bodily integrity. This means that none of the defendants owed under the Constitution the right asserted on the plaintiff's behalf.

(b) The existence of a discrete action for damages for breach of a constitutionally protected right.

Although the views I have just expressed dispose of the plaintiff's claim that she is entitled to damages for breach of a constitutionally protected right I think it is proper that I should express my views on the issue which was extensively debated on this part of the case, namely whether had a constitutional duty existed an action for damages for its breach existed. In approaching this issue (essentially one of constitutional construction) constitutionally guaranteed rights may, as the court's decisions show, be divided into two distinct classes (a) those which, independently of the Constitution, are regulated and protected by law (common law and/or statutory law) and (b) those that are not so regulated and protected. In the first class are all those fundamental rights which the Constitution recognises that man has by virtue of his rational being antecedent to positive law and are rights which are regulated and protected by law in every State which values human rights. In this country there exists a large and complex body of laws which regulate the exercise and enjoyment of these basic rights, protects them against attack and provides compensation for their wrongful infringement. A few examples will suffice to demonstrate the point. The right to private property is protected by laws against trespass; its enjoyment is regulated by laws against the creation of nuisance, remedies for breach of the right to private property (by way of injunctive relief and actions for damages) are available, limitation on its exercise is provided by law, allow for its compulsory acquisition and limit the power to dispose of it by will. The right to liberty is protected by habeas corpus acts and laws against wrongful imprisonment, whilst the exercise of the right is limited by provisions of the criminal code and legal powers of arrest and imprisonment. The right of freedom of expression is regulated by defamation laws and laws to protect public morality. And the right which is in issue in this case, the right to bodily integrity, is protected by the extensive provision in the law of tort.

The courts have, however, pointed out that the Constitution guarantees the exercise and enjoyment of other rights which are not regulated by law and for which no legal provision exists either to prohibit an anticipated infringement or to compensate for a past one. It is now established that for this class of rights the Constitution is to be construed as providing a separate cause of action for damages for breach of a constitutional right. In Meskell v CIE (1973) IR 121 the Supreme Court held;

"That a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action does not fit into any of the ordinary forms of action in either common law or equity and that a constitutional right carries within it its own right to a remedy or for the enforcement of it" (p 132-133).

In that case the court held that the right of citizens to form associations and unions guaranteed by Article 40.6.1 necessarily recognised a correlative right not to join a union, that the defendant had wrongfully attempted to force the plaintiff to abandon his right to disassociation, and that the plaintiff was entitled to damages because of the violation of the right guaranteed to him by the Constitution (p 135), even though a claim for damages for infringement of this right was not available under existing law.

Subsequent to Meskell further cases in which the courts have awarded damages for breach of a guaranteed constitutional right where no remedy for damages existed by common law or by statute. In Kearney v The Minister for Justice (1986) IR 116 the court held that the unauthorised actions of prison officers in failing to deliver to the plaintiff (who was then in custody in prison) letters addressed to him amounted to an infringement of his constitutional right to communication, the court holding that the wrong which had been committed was an unjustified infringement of a constitutional right, not a tort, entitling him to damages (p 122). In McHugh v Commissioner of Garda Siochana (1986) IR 228, the Supreme Court awarded the plaintiff costs and expenses incurred in proceedings against the State in which the State had subsequently accepted liability, treating the claim as one of those referred to in Byrne v Ireland (1972) IR 241 arising from a breach of which no damages were recoverable within a recognised field of wrongs in the law of torts but which the Constitution conferred a right to damages. Kennedy v Ireland (1987) IR 587 was a case in which the constitutional right to privacy was infringed and the court, applying the principal in Mescall held that the plaintiff was entitled to damages for breach of a constitutionally protected right, and not for breach of any wrong recognised by common law or statute.

The courts will not only award damages where a constitutional right which is unprotected by law has been infringed but will also grant an injunction to prohibit the infringement of such a right. In Lovett v Gogan (1995) 3 IR 132 the Supreme Court held that the defendants activities constituted an actual or threatened interference with the plaintiff's constitutional right to earn a living by lawful means and it granted an injunction to protect him from the threatened invasion of those rights.

What falls for consideration in this case is not a guaranteed right of this second class but a right (ie the right to bodily integrity) in respect of which there is a large body of law (both common law and statutory) which regulates its exercise protects it against infringement and compensates its holder should the right be breached. The question, therefore, is whether in this case the Constitution is to be construed as conferring a discrete cause of action for damages for breach of the plaintiff's right to bodily integrity not withstanding the existence of the law of tort and statutory provisions which confer a right of action for damages for personal injuries sustained by the negligent act of omission of another. The question can be posed this way; should the Constitution be construed so as to confer on a pedestrian injured by an army lorry a right to claim damages against the State for infringement of the right to bodily integrity in addition to, or as an alternate to, an action for damages for negligence?

I am satisfied that it should not be so construed.

The State has a duty by its laws to respect, and as far as practicable, by its laws to defend and vindicate the personal rights of the citizens (Article 40.3.1). This constitutional provision does not require the Oireachtas to enact specific laws protecting constitutionally protected rights and the State's duty under this Article is implemented by the existence of laws (common law and statutory) which confer a right of action for damages (or a power to grant injunctive relief) in relation to acts of omissions which may constitute an infringement of guaranteed rights (see Hanrahan v Merck Sharp and Dome (Ireland) Ltd [1988] ILRM, 629, 635-636). Thus if the law of torts makes provision for an action for damages for bodily injury caused by negligence and if the law also adequately protects the injured pedestrian's guaranteed right to bodily integrity then the State's Article 40 duties have been fulfilled. The courts are required by the Constitution to apply the law and the causes of actions it confers and when these adequately protect guaranteed rights they are not called upon, in order to discharge their constitutional duties to establish a new cause of action -- indeed it would be contrary to their constitutional function to do so. Furthermore, to do so would be otiose. If a cause of action for damages for infringement of the constitutional right of bodily integrity was granted to the injured plaintiff in the example I have given the court would have to consider whether there was any breach of the duty which the driver of the army lorry owed to the pedestrian (for the right is not an absolute one) and in considering the nature and scope of the duty would decide whether the lorry driver had failed to take proper care of the plaintiff's safety, whether the pedestrian failed to take care of his own safety apportion liability as required by the Civil Liability Act, 1961, assess damages in accordance with established principles, and in certain circumstances consider whether the claim was statute barred -- in other words apply the law of tort to the new cause of action. There is therefore no need to construe the Constitution as conferring a new and discrete cause of action for damages in those cases in which the acts or omissions which constitute the alleged infringement also constitute an actionable wrong at law for which damages are recoverable. Of course, a provision of the law to be applied might not in a given case adequately protect the guaranteed right (for example the law might contain a limitation period which in the particular circumstance trenched unfairly on a guaranteed right and thus deprive the plaintiff of a right to compensation as in O'Brien v Keogh [1972] IR 144) then the law would be applied without the provision rendered invalid by the Constitution.

The conclusions which I have just announced are consistent with and follow from the views of the Supreme Court in Hanrahan v Merck Sharpe and Dohme (Ireland) Limited (1988) ILRM 629. The plaintiff in that case had claimed damages for a nuisance and submitted that the onus of proof in relation to his claim shifted to the defendants by reason of the provisions of Article 40.3 of the Constitution. His case was that the vindication of his constitutionally protected rights was not properly effective by leaving them to their rights as plaintiffs in an action for nuisance and that the vindication which the guarantee contained in the Constitution required was that the defendants should show that the emissions from their factory (which was the cause of the alleged nuisance) was not their cause. The Supreme Court rejected this submission and pointed out;

"A person may of course in the absence of a common law or statutory cause of action, sue directly for breach of a constitutional right (see Meskell v CIE (1973) IR 121; but when he found his action on an existing tort he is normally confined to the limitations of that tort. It might be different if he could be shown that the tort in question is basically ineffective to protect his constitutional right" (see pages 635-636).

These conclusions are also consistent with the views expressed in Meskell which, by holding that a new and distinct cause of action for damages for breach of a constitutional right when the existing law failed to confer any right to damages implied that when it did so no new cause of action should be created. They are also consistent with those of Barron J in Sweeney v Duggan [1991] 2 IR 274, 285.

I should briefly explain why I have not been able to agree to the submissions advanced on the part of the plaintiff. It is accepted that the decision in Hanrahan does not support the plaintiff's case but it is argued that the portion of the judgment which I have just quoted is obiter and that the number of authorities supporting the plaintiff's contentions are more numerous and that Hanrahan is inconsistent with the decision of the Supreme Court in Lovett v Gogan (1995) 3 IR 132.

However the authorities to which I was referred do not, in my view, establish either that the principle of construction which I have advanced is wrong or that the decision in Hanrahan is in any way inconsistent with other decisions. Byrne v Ireland (1972) IR 241 established that the State is not immune from suit whilst Ryan v Ireland (1989) IR 177 established that the State could be sued in tort. But the issue now under consideration is whether a separate action lies for damages for breach of a constitutionally protected rights and the fact that the State may be sued for the tort of negligence has no bearing on that issue. It has been perfectly clear since Meskell that the courts will award damages and grant injunctions for breach of constitutionally protected rights but in each of the cases where that occurred Meskell was either explicitly or implicitly applied and damages were awarded (and in the case of Lovett v Gogan an injunction was granted) where no remedy at law existed. None of those cases decided that an action for damages for breach of a guaranteed right would lie in cases where the existing law protected the right.

I am satisfied that the law of torts which is applicable in this case was not ineffective to protect the plaintiffs constitutionally guaranteed rights. It does not follow that because a plaintiff does not recover damages under the applicable law (in this case, the law of torts) that it must be ineffective in protecting guaranteed rights. It is necessary to consider why the plaintiff's claim has failed. As already explained, the applicable principles of the law of torts established that there was neither a duty owed to the plaintiff by the defendants under the law of torts or the Constitution to process the extradition warrants speedily and so by applying the principles of the law of torts the plaintiff was not deprived of a remedy to which she was entitled under the Constitution.

The second issue must therefore be answered in the negative.

THE THIRD ISSUE.

The order of the 11 November 1996 was as follows;

"Whether the second named defendant owed to the plaintiff a duty by reason of the provisions of the Extradition Acts, 1965-1987 (and in particular, by reason of section 2 of the Extradition (Amendment) Act, 1987) to consider the extradition request the subject of these proceedings and to process speedily the said request as is alleged by the plaintiff at paragraph 11 of the Statement of Claim herein".

This issue arose from the plaintiff's claim that apart from a duty owed by the Attorney General to the plaintiff by virtue of the common law and/or the Constitution he also owed a statutory duty of care to the plaintiff which was breached. Counsel on behalf of the plaintiff informed me that it was not intended to maintain this claim and accordingly I will answer the issue, "no".

In the result, therefore, I must hold that the Attorney General owed no duty of care to the plaintiff on any of the grounds advanced on the plaintiff's behalf, and answer the three issues in the negative.


© 1997 Irish High Court


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