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Cite as: [2007] IESC 9, [2007] 4 IR 587

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Judgment Title: Shortt -v- The Commissioner of an Garda Síochána & ors

Neutral Citation: [2007] IESC 9

Supreme Court Record Number: 394/05

High Court Record Number: 2003 12115p

Date of Delivery: 21 March 2007

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J.

Judgment by: Murray C.J.

Status of Judgment: Unapproved

Judgments by
Appeal allowed - vary High Court Order
Appeal allowed - vary High Court Order
Denham J., Geoghegan J., Fennelly J.
Geoghegan J., Fennelly J.

Outcome: Allow And Vary


    Murray C.J. 394/05
    Denham J.
    Hardiman J.
    Geoghegan J.
    Fennelly J.

JUDGMENT of Mr. Justice Hardiman delivered the 21st day of March, 2007.
This is a most serious, tragic and alarming case. It has been before the Courts now, in one form or another, for nearly fourteen years. The plaintiff/appellant Mr. Francis Shortt was framed by gardaí on drug offences in 1995, and given a three year sentence. His life was almost totally ruined and he was reduced to a state of despair. At that nadir of his fortunes he found the strength to reject an offer of early release, on the condition that he dropped his appeal and thereby acknowledged his guilt: the Court has heard no explanation of how, why and on whose authority this offer came to be made to him. He lost his first appeal. After a long struggle, conducted by dedicated legal advisers, the prosecution quite suddenly, and without any substantive explanation, consented to his conviction being quashed, in November 2000, some years after his release. After another interval of years, in July 2002, he succeeded after a long hearing in having the conviction declared a miscarriage of justice: his application for this declaration was opposed with perjured evidence by gardaí. The Court is now concerned with the question of compensation for the plaintiff, the victim of what the authorities conceded on this appeal was the worst known example of oppression of a citizen by the State.

This is Mr. Shortt’s appeal from the assessment of damages by the learned President of the High Court. It is necessary, before addressing the question of compensation, to survey the facts of the case and their consequences.

On the 17th of May, 2006, the second and final day of the hearing of this appeal, leading counsel for the defendants Mr. Michael Cush S.C. resumed his submissions with the announcement that he would be saying, as he aptly put it, “something by way of apology to Mr. Shortt”. At the conclusion of his submissions he said that he wished to:
          “… take the opportunity to say that the State acknowledges that Mr. Frank Shortt was the victim of a grave miscarriage of justice. For that and for all his suffering and loss in consequence the State apologises to him unreservedly”.

This apology was tendered some fourteen years after the start of the chain of events which led to Mr. Shortt being wrongfully convicted of drug offences on the basis of consciously false garda evidence, eleven years after he was sentenced, five and a half years after his conviction was quashed by the consent of the Director of Public Prosecutions, and just under four years after the declaration by the Court of Criminal Appeal that his conviction was a miscarriage of justice. The apology was both belated and limited in the sense that no apology of any kind was offered until the surprise of the Court at its absence was made clear the previous day. The apology is carefully drafted, does not refer to Mr. Shortt’s innocence, and does not purport to be offered on behalf of An Garda Síochána. The plaintiff accepted it, in words both dignified and pointed, “in the spirit in which it was offered”.

The reading of this apology was (apart from the judgment of the Court) the last act in an extraordinary fourteen year history which saw Mr. Shortt, then a 60 year old Chartered Accountant and business man, and the father of five children then aged from 12 to 22, perjured into prison by gardaí. They seem to have borne him no personal ill will: they did it for the purpose of furthering their own careers, and in particular that of their commander and mentor Inspector, later Superintendent, Kevin Lennon. Lennon inspired the perjury and gave it a form and coherence which his principal coadjutor, Detective Garda Noel McMahon, was himself incapable of achieving.
What the Gardaí did and how it came to light.
The set up.
On the 31st July, 2002, the Court of Criminal Appeal gave judgment in Mr. Shortt’s application to have his conviction deemed a miscarriage of justice. This application was hotly contested by the gardaí most directly involved and required seventeen days of oral hearing before the Court of Criminal Appeal. In the judgment of that Court there is set out in very considerable detail the precise working of the conspiracy between certain gardai to frame Mr. Shortt, the subsequent steps taken to prevent this coming to light, and later again to prevent the conviction being deemed a miscarriage of justice. The judgment is long, running in its original form to 117 of typescript excluding Appendices. It is reported at [2002] 2 I.R. 686. It is unfortunate, for present purposes, that the editors of the official Reports, in an attempt to save space, drastically edited the factual portions of the judgment, focussing mainly on the legal issues involved. I do not say that by way of criticism: the concern of the Irish Reports is with legal issues. But it means that there is no printed record of the detailed findings of the Court of Criminal Appeal in this uniquely grave case. It would be wasteful to set out here precisely the same material as is set out in the Court of Criminal Appeal judgment. I propose to offer only a brief summary. However, the judgment of the Court of Criminal Appeal and the various appendices to it are available in the office of that Court. I wish to emphasise that no-one can hope to form a full and complete view of the conspiracy deployed against Mr. Shortt without reading that judgment in full.

Having said that, I will attempt to summarise what occurred as follows:
The Point Inn premises were closed for renovations after the death of Mr. Shortt’s brother in 1991 and reopened on the 18th April, 1992. Almost immediately, it became clear that a problem existed with drug dealing in the premises, in particular the presence of drug dealers from Northern Ireland. This problem was acknowledged both by the gardaí and by Mr. Shortt and was the subject of considerable discussion, oral and written, between them. Eventually it was decided to address this problem by putting undercover gardaí into the premises at weekends over a period of some months. Noel McMahon was always present in an undercover capacity; Garda Tina Fowley was present on all but one such occasion. It was agreed at the trial that the topic of undercover gardaí had been discussed between Mr. Shortt and Superintendent Brian Kenny. Mr. Shortt said he was aware from this discussion that there would be undercover gardaí in the premises whereas Superintendent Kenny, agreeing that the matter had been discussed, said that he had not committed himself on this point. As will be seen, Mr. Shortt’s account of this matter received some unexpected support long after the trial.

Subsequent to a major raid on the premises in August, 1992, the gardaí charged Mr. Shortt with multiple charges of permitting his premises to be used for the sale of drugs on that and other occasions. Despite the large number of charges, when the case came to the District Court there was (according to McMahon) a “semi-deal” available to Mr. Shortt whereby he would be allowed to plead guilty to one charge and the matter would be dealt with by way of a fine. Mr. Shortt did not avail of this offer. It was then decided to have the matter dealt with on indictment in the Circuit Court. Mr. Shortt at all times protested his innocence of the charges in question. When a Book of Evidence was eventually produced it turned out that the case against him was very weak indeed, almost non-existent: on the hearing before the Court of Criminal Appeal counsel for the State conceded that there was then insufficient evidence to put Mr. Shortt on trial “on the statements”.

A vital development then occurred. Papers were sent to counsel to advise Proofs. Before a written advice was drafted, there was a lengthy meeting between State counsel and various gardaí in the Lake of Shadows Hotel near Buncranna. When counsel’s Advice of Proofs was received it pointed to the fact that the evidence in the garda statements was grossly inadequate to support the charges. As counsel said, the evidence available from the garda statements clearly established that drug dealing was taking place on the premises but it did not establish that Mr. Shortt was in any way involved in or tolerant of this. Portions of the evidence, indeed, were open to the construction that he was not aware of it. In so advising, counsel was doing no more than her duty to her client, the Director of Public Prosecutions.

This Advice of Proofs came to hand in September, 1994. It presented the gardaí with an acute dilemma: a trial date had been fixed for October, 1994, and here was State counsel telling them that, on the Book of Evidence, they had no case. Certain gardaí then engaged in a conspiracy to transform a very weak case into a very strong one by inventing evidence. This was done cleverly and cold bloodedly, in a manner fully described in the judgment of the Court of Criminal Appeal.

The result of this conspiracy emerges clearly in the judgment of the Court of Criminal Appeal. It can be seen very easily, simply by comparing the original statements of McMahon and Fowley with their subsequent statements, served as additional evidence. The judgment of the Court of Criminal Appeal contains a tabular summary tracing the changes in the Garda account contained in the original contemporary notes (concealed at the trial) through the initial statements to their eventual additional evidence. It is noteworthy that the statements of McMahon and of Fowley were altered in a very similar way.

This, however, was not easily done. Although one would have thought it perfectly plain from the Advice of Proofs what the shortcomings in McMahon’s evidence were, he found it difficult to come up with a new statement which would support the prosecution case. Accordingly, he brought his statement to a meeting with Lennon in a garda station. Lennon took the statement and, in his own handwriting, indicated the necessary alterations. Some of his instructions are in unambiguous terms such as “Where is Shortt - say he was nearby”.

The statement of McMahon annotated by Lennon is an appendix to the judgment of the Court of Criminal Appeal.

Even with this fools guide, in Lennon’s handwriting on McMahon’s statement, the latter had serious difficulty in producing an acceptable version to be served as additional evidence. His eventual statement of additional evidence was produced not in a garda station but at a meeting in his own home attended by himself, Garda Fowley, another guard who did the typing and, for part of the time Inspector Lennon. He was called to the meeting because of a grave and unexpected difficulty which had arisen. The gardaí had told State counsel when they met her that on each occasion they were present undercover in the Point Inn the water supply had been turned off. The effect of this was to force customers, if they wanted water, to buy it from the bar. It is a recognised effect of the consumption of “speed” that it makes the consumer extremely thirsty. McMahon’s statement had several references to seeing large quantities of glasses of tap water being sold over the bar. The problem which arose was that in the statement of Garda Tina Fowley she described following a girl in to the ladies toilet and seeing her splitting a white tablet. The girl then “put one half into her mouth and washed it down with a drink of water from the wash basin”. If this was so then the detailed allegation the Gardaí made to State Counsel, recorded in the Advice of Proofs, was false.

Arising from the inconsistency between this statement and the allegation to counsel that the water had always been turned off it was decided simply not to pursue the latter allegation any further than they already had. This was done even though it had featured quite heavily in Lennon’s original plan: on the first page of McMahon’s statement he had written “You have to say that you drank numerous half pints of water from the [illegible] section of the bar. Who was filling the glasses of water from behind the bar etc.”.

The case then proceeded with McMahon and Fowley giving evidence in accordance with their new statements. The importance of their evidence is undisputed: the learned trial judge in the Circuit Court (His Honour Judge Buchanan) described McMahon’s evidence as the nub of the prosecution case, and so it was. McMahon was naturally cross-examined on how his first statement, which revealed no case at all against Mr. Shortt, had mutated into a second, which revealed a strong one. He claimed that the new version was the unaided product of his own memory. Asked what materials he used in writing his second statement he perjured himself by concealing the existence of his original notes which did not at all incriminate Mr. Shortt.

Mr. Shortt was then convicted and sentenced to three years imprisonment. His conviction related to thirteen only of the counts against him: the rest were held over. Later, when he was offered early release if he dropped his appeal, a further inducement held out to him was that these additional counts would be dropped. He was at that stage in fear that they would be proceeded with and he would receive a longer sentence.

It must be emphasised that the foregoing is the barest summary of the main findings of the Court of Criminal Appeal in relation to the framing of Mr. Shortt. There was also evidence that McMahon arranged with a woman who was an established garda informant to attend on the night of the raid in August, 1992, and plant drugs on the premises. In fact, she got drunk and did not turn up. Furthermore, McMahon alleged that he had bought drugs from a named person using marked sterling currency. This person was then arrested but the currency could not be found in the property store in Buncranna Garda Station when inquiries were later made, and it turned out that the custody record in relation to the person had been torn out of a bound book at the garda station. This, of course, would have shown what property he had on him on arrival there. Despite the allegation of widespread drug dealing, no person appears to have been convicted of such an offence in relation to the evening of the raid. I reiterate the necessity for anyone wishing to understand in detail what happened to Mr. Shortt to read the judgment of the Court of Criminal Appeal.
    The consequences of these things to Mr. Francis (Frank) Shortt, were nothing less than life blighting. He suffered imprisonment for three years, less only statutory remission, his business and his reputation were ruined, his health suffered and his private and family life were severely affected. He was driven into a state of despair and for a period endured a dark night of the soul. His premises were burnt down by the I.R.A. He suffered intense feelings of shame and powerlessness, aggravated by his school going children being pilloried as the children of a drug dealer and by his wife, whom he had always supported appropriately, being compelled to apply for a social welfare allowance for the wives of prisoners. When, having served the sentence and suffered all the other consequences, he endeavoured to have his conviction declared a miscarriage of justice, he was opposed with further perjured evidence by members of An Garda Síochána, including the Superintendent. While the direct cause of these grotesque injustices was a conspiracy between a small number of members of An Garda Síochána, the attitude of the garda and prosecuting authorities was, to say the least of it, a grudging and insensitive one as will be seen.

    The circumstances of this case, and the fact that the perpetrators of the grave wrong committed against Mr. Shortt were persons wearing the uniform of the State, aggravate the wrong done to him and give the affair a public as well as a private dimension. It is now possible to be categorical as to how this injustice was perpetrated: the details are set in the judgment of the Court of Criminal Appeal, and make for profoundly disturbing reading. Further details of the actions and attitudes of the State authorities, specifically the prosecution service and the Garda Síochána in the period 1992 - 1997 came to light on the hearing of this appeal and are discussed below. On the hearing of Mr. Shortt’s application for compensation the case he made was not contradicted in any way by those authorities and was accepted by the learned President.

    Matters still unexplained.
    But there are significant aspects of the case which are still unexplained. These include how it came about that Mr. Shortt was returned for trial on serious criminal charges, at the suit of the Director of Public Prosecutions, even though it was conceded in the Court of Criminal Appeal that there was then no sufficient case against him on the documents which had been produced; how, despite this state of affairs, Mr. Short was offered a “semi-deal” whereby the bulk of the charges would be dropped if he pleaded guilty to a single charge, with only minor consequences; how no alarm bells were set ringing by the sudden transformation of a very weak case into a very strong one by new statements from two members of An Garda Síochána containing material which they had inexplicably said nothing about until shortly before a trial date was fixed; how, while unjustly imprisoned, Mr. Shortt was offered various benefits, including early release, if he would drop his appeal and how a very important allegation of an admission of perjury by one of the gardaí involved, from a credible source, apparently escaped the attention of senior gardaí and prosecuting authorities for a considerable time. They did nothing about it. But the D.P.P., while unaware of this important evidence, nonetheless consented to the conviction being quashed, for reasons yet to emerge.

    Not the least alarming aspect of the case, touched on above, is that Mr. Shortt was framed by gardaí who, on all the evidence, bore him at first no personal ill, will simply in pursuit of an unscrupulous scheme to advance their careers, and in particular that of Superintendent Kevin Lennon. It was he who orchestrated the conspiracy to make a false case against Mr. Shortt and he had as his willing coadjutor Detective Garda Noel McMahon and perhaps another member. Each of the relevant gardaí was absolutely indifferent to the commission of perjury. McMahon, almost incredibly, at one point during his evidence in the Court of Criminal Appeal blamed, not himself or his superior, but Mr. Shortt’s original legal advisers for the sentence which he received:
            “I might have expressed the fact that it is a shame a man of his age put himself in a position or was put in that position by his legal team to serve time when it could have been resolved at District Court level”.

    On the face of it, Mr. Shortt would have appeared an unpromising candidate for the sort of set up of which he was the victim. He was a sixty year old family man, a professionally qualified accountant, a Fellow of the Institute of Chartered Accountants, and a well known businessman in the North Donegal area. Yet he was successfully framed, with all the consequences set out above. It is also noteworthy that a witness told the Court of Criminal Appeal, with retrospective incredulity, that Lennon was spoken of in Donegal Garda circles as a possible future Commissioner of An Garda Síochána.

    Admission of perjury drops out of sight.
    Another major theme in the judgment of the Court of Criminal Appeal was the evidence of Mrs. Sheenagh McMahon which, for the reasons set out in that judgment, the Court accepted as truthful and very largely accurate. A very significant part of her evidence related to admissions to perjury made to her by Detective Garda McMahon. This evidence is important for three quite separate reasons.

    In evidence to the Court of Criminal Appeal Mrs. McMahon said that Detective Garda McMahon was “upset in front of me about Mr. Shortt, his conviction, he didn’t think that Mr. Shortt was going to get three years… I don’t think that he was upset about the fact he was convicted, but he was definitely upset at the fact that he was put in jail for three years… he said he didn’t expect him to get three years.” She also said that Detective Garda McMahon had said “… that it was his evidence that convicted Francis Shortt and without his evidence Francis Shortt wouldn’t have went to jail” (sic). She was asked whether the Detective Garda had said anything else, whereupon she paused and said “He told me that he had perjured himself in court… and that he had done it for Kevin Lennon to help him get promotion”.

    This was clearly very significant evidence. The Court of Criminal Appeal was, however, constrained to treat it with great caution because the witness was the estranged wife of the Detective Garda and she appeared to be giving this account for the first time in the Court of Criminal Appeal, although she had been extensively interviewed by the Gardaí as part of Assistant Commissioner Carty’s Inquiry. She was questioned about this both by counsel and by the Court. She stoutly denied that she was saying it for the first time and maintained in the face of scepticism from counsel and the Court that she had given the same information to the Carty Inquiry. The Court, and the parties to the miscarriage of justice application had been given what was represented to be all the relevant papers from this Inquiry and there was no mention, direct or indirect, of this very significant allegation being made by Mrs. McMahon. But she appeared absolutely certain in court that she had made this allegation to Carty. The Court specifically asked counsel for the respondent:
            “The question is now a very simple one: is there in any shape or form a signed or unsigned note of a mention of perjury by Mr. McMahon?”

    Counsel for the Director of Public Prosecutions, who was fully alive to the importance of the matter replied:
            “Not in any material we have from the Carty Inquiry…”.

    The Court then asked:
            “… Is there in any shape or form in any garda document a note of this lady mentioning the term ‘perjury’ or words to that effect?”.

    Counsel replied:
            “Certainly not that I have or that I am aware of…”.

    Most unfortunately and embarrassingly, it transpired that counsel’s instructions were grossly deficient. Later in the day a separate memorandum of an interview with Mrs. McMahon was found and, in the words of counsel for the State:
            “It does mention - what the witness says is correct”.

    It transpired, precisely as Mrs. McMahon had said, the garda officers conducting the Inquiry had indeed decided that the allegation of perjury and cognate matters should be put into a separate document. The consequences of this for the present case are indeed very great. What she said was recorded in a separate memorandum of interview of the 15th September, 2000; as follows:
            “Sheenagh McMahon then spoke about the Frank Shortt case. She stated that her husband had told her that Tina Fowley nearly ruined the case in court. Noel told her that he had committed perjury in the Court. She stated Kevin Lennon put Noel up to telling lies in the case. Sheenagh said that Tina Fowley could fill us in more on this matter. Noel told her that Frank Shortt did not deserve the sentence that he had received. She said that Frank Shortt had gone to Superintendent Brian Kenny in Buncranna and had requested him to put gardaí into the Point Inn in order to clear the place of drugs”.

    The last sentence above precisely mirrors what Mr. Shortt said in his own defence at the trial. But it was contradicted by Garda evidence at the trial.

    There is then a sentence which is difficult to believe that anyone concerned about policing matters in Donegal could have forgotten:
            “Sheenagh McMahon stated that it was probably because of the false evidence given in the Frank Shortt that Tina Fowley blew the whistle on the McBrearty case”.

    Three observations require to be made about this evidence.

    If it is reliable, and the Court of Criminal Appeal has found that it was, it is evidence of an absolutely unique kind: an admission by a Detective Garda of premeditated perjury in an important criminal case.

    Secondly, Mrs. McMahon’s credibility was greatly boosted by the fact that her account of having told the Carty Inquiry about the admission of perjury, and her persistence in this account in the face of manifest scepticism from the Court and from counsel for the authorities, was vindicated by the sudden production of the memorandum. It must have appeared to Mrs. McMahon that the authorities had deliberately decided to “bury” her account of September, 2000, and to deny that she had ever said anything of the sort. But she did not waiver in her account.

    Thirdly, while the Court of Criminal Appeal for reasons set out in its judgment found that neither the garda authorities nor the Director of Public Prosecutions had deliberately concealed the memorandum, the fact that it was forgotten about and never acted upon is gravely disturbing. It should be said that Mrs. McMahon gave the account set out above to the gardaí only two months before the Director of Public Prosecutions consented to Mr. Shortt’s conviction being quashed. Nevertheless, counsel for the Director told the Court of Criminal Appeal that her account had not influenced the Director’s decision because, though he had received the memorandum, he had not read it at the time he took the decision to consent to the conviction being quashed. This, in turn, means that the Director had formed the view that the conviction was unsafe or unsatisfactory on grounds unrelated to the Detective Garda’s confession to perjury. The Court has no idea what these grounds were.

    Apart from that, it is very surprising, to say the least, that so dramatic an allegation was not followed up. It was the gardaí who insisted that Mrs. McMahon’s account of the admission to perjury should not form part of her main statement but be separately recorded. This, presumably, was because of its sensitivity. But it had the consequence that the perjury allegation simply dropped out of sight. It did not form part of her principal statement, or of the edited version of that statement which was given to the Court and to Mr. Shortt’s advisers. It must surely have been communicated to the very highest levels of An Garda Síochána but nothing was done about it.

    So thoroughly did this vital piece of information drop out of sight that solicitor and counsel for the authorities, at a hearing specifically directed to the question of whether Mr. Shortt’s conviction was a miscarriage of justice, were never told about it by the gardaí. These professional advisers were thus placed in a position of very great embarrassment without any fault on their part. It is only fair to add that, after this catastrophe, solicitor and counsel for the authorities placed the whole product of the Carty Inquiry before the Court of Criminal Appeal. This had the incidental effect that that Court could see the enormity of the task undertaken by Mr. Shortt’s legal advisers in trawling through documents running to many thousands of pages a considerable number of which were neither indexed nor paginated.

    The Court can only regard the circumstances whereby Mrs. McMahon’s allegation simply dropped out of sight as indicative of grave insensitivity on the part of the authorities, an inexplicable failure to investigate the most relevant and serious allegation and a reluctance to contemplate the appalling prospect that Mr. Shortt had indeed been the victim of a campaign of perjury by gardaí. Even when the documentary evidence mentioned below came to light, the alleged confession to perjury remained uninvestigated.

    Chance and Coincidence.
    To conclude this survey of the case, attention must be drawn to the large element of chance and coincidence involved in the eventual vindication of Mr. Shortt. One of the gardaí involved, McMahon, was a man who drank to gross excess and when drunk and maudlin confessed his perjury to two of the witnesses who gave evidence in the Court of Criminal Appeal. Secondly, McMahon’s drinking problem, in the years following the Shortt case, made him into a “loose canon” from the point of view of his colleagues and superiors. There was, for example, a serious incident where he pointed a gun at another guard. But of more relevance to the present case was the fact that, according to Superintendent Lennon himself, a Sergeant in the Donegal Division, Sergeant Leheny, expressly threatened to destroy Lennon’s career on the basis of information which he claimed McMahon would supply when drunk. This extraordinary fact led to the creation of certain contemporary documents discussed below. Thirdly, there was something of a falling out between McMahon and Lennon over an apparently trivial cause: Lennon successfully nominated himself for a Divisional policing award wholly or mainly on the basis of the Shortt case: and McMahon bitterly resented this as he felt he should have had the award himself. Fourthly, the ill-feeling engendered by this dispute led Lennon to think that McMahon might make allegations against him and caused him to get McMahon to write a remarkable “letter of satisfaction” which is fully discussed in the judgment of the Court of Criminal Appeal. The same dispute and its consequences led McMahon to keep certain documents of a highly incriminating nature which he might otherwise have destroyed, including one clearly showing Lennon’s role in procuring the alteration of the garda evidence prior to the trial. McMahon kept this material because, in his own words used in a handwritten aide memoire to himself, he was afraid that “Lennon [was] shafting me”.

    The fact that these incriminating documents were preserved, precisely because they were obviously incriminating, by an experienced Detective Garda who fully understood their significance is one of the most remarkable features of a case with many extraordinary features. The documents themselves include:
    (1) A group of “half sheets” being individual pieces of paper on which McMahon had written his original notes of his undercover activities in the Point Inn. The significance of them for present purposes is that they do not at all incriminate Mr. Shortt. They were concealed at the trial even in answer to a direct
        question which, if truthfully answered, would have
        involved revealing their existence.
    (2) Noel McMahon’s original statement, again failing to
        incriminate Mr. Shortt, with handwritten annotations
        in Lennon’s handwriting showing how he was to be
        incriminated in the second statement.
    (3) A four page document in McMahon’s handwriting
        which included the notation
        “Point Inn - perjury - set up - advice of proofs -
        Kevin Lennon had my note book”.
    (4) Another document in McMahon’s handwriting,
        headed “General”. According to the evidence in the
        Court of Criminal Appeal this recorded what
        Lennon told McMahon were the allegations
        Sergeant Leheny was making against him, Lennon. They led to the ‘Letters of Satisfaction’ discussed below. Matters mentioned included an allegation about Lennon’s personal life, “Point Inn etc. etc.” and ‘Lennon shafting me’.
    (5) The “Letters of Satisfaction”. These were two
        drafts of a letter, one envisaging its being written
        to Lennon himself by McMahon and the other
        envisaging it being sent to Sergeant Leheny. Each
        is an endorsement of Lennon’s character by McMahon and there is
        a specific reference to the fact that McMahon had
        never known Lennon “act illegally while
        participating in any operation”.
        They are very remarkable documents indeed and are Appendices to the judgment of the Court of Criminal Appeal. The first version was drafted by McMahon and the second by Lennon.
    (6) Prosecuting counsel’s advice of proofs for the criminal trial. It is most unusual to be able to scrutinise this document, as it would normally be protected by privilege. Its importance for the present purposes includes that it demonstrates clearly that the gardaí were advised that they had no sufficient case against Mr. Shortt, leading them to set out to remedy this embarrassing state of affairs. It records aspects at least of what the gardaí told counsel in their long meeting at the Lake of Shadows Hotel, such as the information that the water was turned off in the premises. It does not appear from the advice of proofs that the information subsequently added to garda statements was narrated to counsel at the meeting. It should also be said, in relation to the advice of proofs, that of course a case could have been made against disclosing it on the basis that it was a privileged document. But it came to light, not by virtue of any process of disclosure or discovery, but because it was seized by the Carty team amongst other documents retained by McMahon. No objection was taken to its use during the hearing in the Court of Criminal Appeal. It was, together with other documents, vital in demonstrating the nature and detail of the conspiracy which occurred.

    I stress, once more, that the judgment of the Court of Criminal Appeal is essential for an understanding of these documents.

    Mrs. Sheenagh McMahon said that her husband had shown the “Letters of Satisfaction”, and in particular Lennon’s draft, to her and “said to me that this was the biggest mistake that Kevin Lennon made, and he said that that piece of paper was so important to him… he said he would never let that out of his hands”. McMahon and Lennon each knew that the other was a wholly unscrupulous person with no regard whatever for the oath or for the truth. Lennon agreed that he had got McMahon to write the “Letters of Satisfaction” as “insurance”. McMahon kept these incriminating documents because they incriminated Lennon as well as himself, so that if Lennon “shafted” him, he would be destroying himself as well. He hoped that this prospect would prevent Lennon “shafting” him.

    It is essential to recall, though incriminating material about the set-up was preserved for the reasons mentioned above, it might never have come to light but for more widespread concerns about the activities of certain gardaí in Donegal. These are now notorious due to the reports of the Morris Tribunal and they had previous led to a high level garda inquiry. The Shortt case was only a very small part of that inquiry but the inquiry led to the Carthy team taking possession of the documents retained by McMahon. It also led to the first coming to notice of third party evidence to the effect that McMahon had perjured himself in Mr. Shortt’s case: most unfortunately this appears to have been lost sight of for a considerable time.

    It is important to note that the remarkable gravity of the case has now been recognised by all who dealt with it. The learned President described what had happened as “an outrageous abuse of power”. Counsel for the State on the hearing of the appeal said that Mr. Shortt’s case was the worst case of State oppression of a citizen of which the State defendants were aware. The consequences to Mr. Francis Shortt were appalling and cry out for vindication. Even apart from the outrageous damage to that unfortunate man, there must be grave public concern at the garda conspiracy against an innocent man and the calculated, fluent and plausible perjury which the gardaí engaged in, with total indifference to humanity or justice.
    Submissions on damages.
    A change in the State’s position.
    It must first be said that the State’s case as eventually argued in this Court was, on the very significant topic of exemplary damages, very different from that advanced before the learned President in the High Court. The State had contended that no award, or only a very limited award, should be made in respect of exemplary damages by reason of the size of the compensatory damages awarded and the risks of double compensation. In other words, the State had contended that a significant part, or perhaps the whole, of what is normally reflected under the heading of exemplary damages (where the question of exemplary damages arises at all) should be regarded as having been already covered by the awards under the heading of general damages. This submission found favour with the President who justified the award he made by remarking that he “must be conscious of double compensation”.

    On the hearing of this appeal Mr. Michael Cush S.C. in the course of argument very properly withdrew this contention. It was proper to do this because damages awarded under this heading are different in kind from, and do not at all overlap with, general damages. This topic is fully discussed below. But since the Court is making a significant alteration in the damages awarded by the High Court, it is fair to point out that the difference is to a large degree accounted for by this change in the State’s attitude to a very important component of the compensation. The Court is quite satisfied that the State’s current approach is based on a correct assessment of the law on this topic.

    The damages awarded by the learned President were all the subject of appeal to this Court. They were as follows:

    Apart from the challenges to the special damages, which will be dealt with later, it was said that the sum of €500,000 for general damages was gravely inadequate. The award of €50,000 for exemplary damages was very small in the circumstances “extraordinarily so: it ought to be very very much expanded”. Exception was taken to the decision of the learned President not to award aggravated damages as a separate head of damages. Finally, there was a challenge to the award of €5,000 in respect of the claim for events from April, 1992, to the date on which the plaintiff was charged.

    Submissions on Damages: the plaintiff’s case.
    In relation to the sum of €500,000, Mr. Hugh Mohan S.C. for the plaintiff stressed the long period of time which this award had to cover. He said that the plaintiff had clearly “ticked all the boxes” for a very large award of general damages in respect of events which had gone on for a long time and said that the many different types of damage required detailed attention. The first and most important of these, counsel submitted, was the 27 months spent in jail. He emphasised the dreadful effect it had on the plaintiff as set out in his own evidence and that of his wife. Immediately upon conviction he was handcuffed, chained to a prison officer and removed to prison in a blaze of publicity. He spent two separate periods of twelve weeks in Mountjoy prison in terrible conditions and at times in the company of persons of whom he credibly alleged he was constantly frightened. Counsel stressed the effect of this in particular on a man over sixty years of age with no previous convictions and no previous exposure to the criminal elements with whom he was confronted in prison. In making these submissions counsel was able to refer to a prison diary kept by the plaintiff: it is not my intention to set out here extracts from what was a private document kept in part to preserve his sanity in the circumstances in which he found himself. But there can be no doubt that he suffered despair and extreme mental anguish. In the words of a medical report from a consultant retained by the defendants, he had inflicted on him “ongoing, relentless and continuing stress as a result of the events before during and after his trial”. Counsel referred to this doctor’s conclusion that it was “highly probable that the events from 1993 onwards contributed appreciably to a heart condition”. As mentioned above, the evidence of Mr. Shortt and his wife was not contradicted. Counsel particularly emphasised Mrs. Shortt’s evidence that her husband quite suddenly became an old man, and at times resembled “a zombie”.

    Counsel emphasised certain other incidents of the imprisonment. It was undisputed that the plaintiff had been denied temporary release on at least fourteen occasions even though this privilege was accorded to people who he knew in prison who had been convicted of what appeared to be much more serious crimes. There was equally no contradiction of the plaintiff’s evidence as to what he had been told by way of explanation of this: his application had to go to the local Garda Superintendent, who was Superintendent Lennon, and that it was to be inferred that he had simply frustrated these applications. These refusals induced depression in the plaintiff for which he was prescribed medication at particularly bad moments, when, for example, he was refused temporary release on the birth of his first grandchild and refused again when his wife had to go into hospital leaving no adult at home to look after school going children.

    Separately, Mr. Mohan made submissions on the damage to the plaintiff’s good name which he said was deliberate, severe and ongoing. Counsel referred to a book of press cuttings and indeed it is quite clear that, apart from the extensive publicity surrounding the major raid on his premises, the trial, and the sentencing, Mr. Shortt had lodged in the minds of journalists as an example of a drug dealer successfully dealt with: his name was used in connection with articles on drugs even long after the events at the Point Inn. It is equally clear that Superintendent Lennon made himself available to the media, both print and electronic, to talk and indeed to boast about the case. All this, said counsel, together with the stigmatising effect of conviction, had great damaged the plaintiff’s good name. Moreover, Mr. John Ward, Solicitor, who acted for Mr. Shortt in the appeal and in the miscarriage of justice application and in a malicious damages claim gave evidence that even after the conviction was quashed there were many in North Donegal who took the view that there was “no smoke without fire”.

    Mr. Mohan then referred to the physical problems affecting the plaintiff and outlined the medical reports which were produced. He pointed out that the back, heart and (to some extent) psychological problems were ongoing. He had not been able to work since the events. He would continue to suffer from these problems into the future. Moreover his own self perception was gravely affected and, naturally, he thought with horror of all that had happened to him, if not on an hourly basis, then certainly on a daily basis.

    In this regard Mr. Mohan particularly challenged the decision not to make an award of general damages into the future. He pointed out that the plaintiff’s own evidence, that of his wife and that in the medical reports all referred to suffering in the future.

    Mr. Mohan was critical of the failure to make an award of aggravated damages. He stressed the criteria for such damages as set out in Conway v. The Irish National Teachers Organisation and Ors. [1991] 2 IR 305. He referred in particular to the criteria for the award of such damages as set out in the judgments in the Supreme Court in that case. Counsel submitted that Mr. Shortt met not one but all of these tests. He made lengthy submissions as to a portion of the President’s judgment which will be discussed below to the effect that the award of aggravated damages would amount to double compensation. In summary he said that the factors listed by the learned President at p.57 of his judgment as illustrating the apprehended double compensation all related to the plaintiff’s own feelings, whereas as the indicia for aggravated damages relate to the defendant’s behaviour and motivation.
    Mr. Mohan put before the Court photographs of the Shortt family taken shortly before the plaintiff went into prison and another taken after he came out by way of emphasising just how long and how significant were the periods for which he lost out entirely on family life. Counsel also pointed to the very long duration of the affair as a whole, fourteen years from its inception until the hearing and pointed out that the awards had to reflect this.

    Separately, Mr. Mohan made submissions on the question of exemplary damages. These, he felt, were very small indeed, very gravely inadequate. He questioned the learned President’s rationale for making only this small award and submitted that no question of “double compensation arose because exemplary damages were meant to be just that, exemplary or punitive, whereas the other headings were compensatory: there was no element of overlap”.

    Mr. Mohan adopted the statements in the judgments in Conway and in particular those of Finlay C.J. and McCarthy J., as to the nature and purpose of an award of exemplary damages. In this connection he emphasised that after fourteen years there had been no apology. He referred to the case of de Rossa v. Independent Newspapers
    [1999] 4 IR 432. This was a defamation case where the plaintiff had been awarded £300,000. Counsel said that allowing for the change from punts to euros and changes in money values, the award for general damages here was approximately what Mr. de Rossa had got. Counsel emphasised that he was not in any way trivialising the libel on Mr. de Rossa which was very grave. He emphasised, however, that there was of course no question of imprisonment in Mr. de Rossa’s case or of the ongoing public humiliation which accompanies a stigmatising conviction. He emphasised also that Mr. de Rossa had gone on to have a successful career including becoming a member of Government and later of the European Parliament whereas Mr. Shortt was ruined and disgraced.

    State’s submissions.
    For the State, Mr. Michael Cush S.C. first said he was standing over all the figures in the learned President’s judgment. Speaking generally he reminded the Court of the standard of review: there could only be an uplift in damages if they bore no reasonable proportion to what this Court thought ought to be awarded. This was not disputed. Secondly, Mr. Cush submitted that there was no doubt but that the learned President fully appreciated what he was dealing with. He referred to a number of passages of the judgment including the President’s finding of “an outrageous abuse of power”. He emphasised that the judgment of the learned President had set out in eight headings all of the plaintiff’s complaints very fully. Thirdly, Mr. Cush submitted that there was no real dispute about the general approach appropriate to be taken to the assessment of damages and referred to the fact that his written submissions on this topic were not contradicted. Fourthly he submitted that the Court had to have regard to the totality of the award: “there should be some sort of checking off of the various elements”.

    In relation to general damages Mr. Cush first submitted that a very large award for special damages had an effect in reduction of general damages. The reasoning he gave for this was that the extra earning power generated by a large sum of money awarded and received all at once. Even if that were not so in relation to certain headings of general damage, counsel said it was certainly true in respect of an award in relation to personal injuries.

    Mr. Cush said that the sum of €500,000 awarded in general damages had to be regarded in the circumstances as including what might otherwise be regarded as aggravated damages. He referred again to the President’s list of eight headings at p.54 of the judgment and on a passage in the lower half of p.57. He conceded that the sentence containing the reference to “dual compensation”, would be a misstatement of law if it stood alone but in context it had to be read as a reference to the Conway factors of malice, oppression etc.

    This point is an important one since it is relied upon to justify the omission to award aggravated damages.

    Mr. Cush agreed that the de Rossa case was useful. He also agreed that the gravity of the wrong committed on the plaintiff in that case was of a lesser order than that committed in the present case. In answer to a question from the Court Mr. Cush said that Mr. Shortt’s case was the worst case of State oppression of an individual citizen of which the State was aware. He said that the absence of an apology was relevant both to exemplary and to aggravated damages.

    Turning to the personal injuries aspect of the claim, Mr. Cush said that the plaintiff’s medical problems were over. When his attention was specifically drawn to the cardiologist’s report which seemed to contradict that view, counsel said that perhaps there should be “something” awarded by way of damages for personal injuries into the future in view of that.

    Turning to the reputational aspects of the claim, Mr. Cush said that there were three major mitigating factors: the decision of the Court of Criminal Appeal declaring the conviction to have been a miscarriage of justice; the award made by the learned President; and the perception of gardaí in Donegal in the aftermath of Mr. Justice Morris’s very disturbing reports. Mr. Cush submitted that it was clear that all of these matters must have a rehabilitating effect on Mr. Shortt. The State’s reliance on the Morris Report as mitigating the damage to Mr. Shortt can only be on the basis of a view that the reputation of the force in that area is so damaged that an arrest by them, followed by a conviction based on their evidence, is devalued or lacks in credibility or is capable of being regarded as a set up.

    Mr. Cush then turned to the topic of exemplary damages. The State’s original position had been that the approach of the President was correct: that is, it was correct to award only very limited exemplary damages having regard to the substantial award made in relation to compensatory damages and in order to avoid double compensation. However, almost immediately after embarking on this topic Mr. Cush said that the President had not been correct to consider the risk of double compensation as a factor capable of reducing the award of exemplary damages, simply because exemplary damages were not at all compensatory in nature. This was a major concession and a major alteration in the State’s case as argued in the High Court and at the commencement of the State’s submissions on appeal.

    Mr. Cush submitted, however, that in the assessment of exemplary damages account had to be taken of the fact that the basis of the liability of the “paying parties” was vicarious and not direct. Mr. Cush immediately stated that there was no authority on this proposition but he submitted that it was nonetheless obviously true.

    This is indeed a very far reaching submission. It is obvious that the State, Ireland, cannot itself permit perjury, conspire to frame a man on serious criminal charges or conspire to conceal misdeeds of that nature. It can only do so through the servants or agents of the State. Equally, it is beyond doubt that neither the present holders of the office of Attorney General and Commissioner of An Garda Síochána, nor their predecessors in 1994/95, were in any way personally aware of or complicit in the conspiracy which damnified Mr. Shortt. This is the usual position in claims of wrongful behaviour by the State. Accordingly, Mr. Cush’s submission amounts to saying that where a person suffers a tort of a sort egregious enough to attract exemplary damages, those damages should be reduced if the “paying party” is not himself personally responsible. In practise, that would mean a reduced scale of exemplary damages in respect of almost all misdeeds by public authorities grave enough to attract such damages in the first place.

    Towards the end of his submissions on the first day of the hearing of this appeal, Mr. Cush referred to advice given to juries in defamation cases, that they should consider the purchasing power of any particular sum of money they had in mind to award. He made this reference in the context of discussion earlier in the day about the proposition that €500,000 would not buy a good two bedroomed flat in parts of Dublin. Mr. Cush said, however, that the purchasing power to be considered was that relating to premises in Donegal. However, at the start of his submissions on the second day, counsel said that he did not mean to imply that a lesser sum should be awarded to a person by reason of his being based in Donegal or any other rural location.

    On the second day of the hearing, Mr. Cush first made the announcement already discussed about “something by way of apology to Mr. Shortt”. Continuing his submissions, Mr. Cush first submitted that the Common Law claims advanced by Mr. Shortt were simply “not proven” and that this could not be revisited on appeal. He stated again that awards of general damages in outrageous circumstances would very often lead to an award of aggravated damages separate from compensatory damages on the one hand or exemplary damages on the other. Here, however, the circumstances of outrage were “inherent in the claim”. Accordingly, damages in respect of this were assessed as part of the general damages and not as a separate heading of aggravated damages. He referred again to the passage at page 57 of the judgment of the learned President, which was the subject of extensive submissions from both sides.

    Mr. Cush referred to two very contrasting cases. One was an English case of O’Brien where a person had been convicted of murder and imprisoned for twelve years, which period included virtually all of his twenties and his early thirties. An award of £200,000 sterling was made to him when this conviction transpired to have been wrongfully obtained. The case is very remarkable in that at one point the Crown contended that the award should be reduced to take account of the sustenance and accommodation provided to the claimant at public expense while he was imprisoned. I regard this award as inadequate by Irish standards.

    In stark contrast to this was an Irish case of Bedford, unreported. There, Mr. Cush said a lady had recovered €100,000 for a wrongful arrest under s.30 of the Offences against the State Act within the past few years. She had not however been prosecuted and the detention extended to 48 hours only. To say this is not to belittle the wrong done to her or in any way to suggest that the damages were excessive.

    At the conclusion of his submissions, Mr. Cush responded to questions on certain specific aspects of the case. He conceded that it was fair to say that Sheenagh McMahon’s statement alleging that her husband had confessed to her that he had perjured himself in the trial of Francis Shortt had been ignored. Equally, he said that it “seemed a likely inference” that the gardaí blocked temporary release for Mr. Shortt during his prison sentence. Mr. Cush also said that it seemed likely that the State, and not simply the gardaí, must have been involved in the offer made to Mr. Shortt while he was serving his sentence. It will be remembered that this was an offer of immediate transfer to an open prison, followed by early release, in consideration of his dropping his appeal. He said that neither on that subject, on the repeated denials of temporary release, nor on the absence of an apology until that day could he put the matter any further. He finally emphasised that Crofter Properties Ltd. v. Genport Ltd. [2005] 4 I.R. 28 “was an authority for the proposition that the award of compensatory damages had to be considered when assessing exemplary damages”.

    In reply, Mr. Hugh Mohan first dealt with a reference in the judgment of the learned President to evidence being “planted”. Mr. Mohan conceded that there was “no direct testamentary basis” for that finding. It appears from the judgment of the Court of Criminal Appeal that Garda McMahon had an agreement with a long standing garda informant to plant evidence but that the woman in question got drunk and did not turn up to do so. When McMahon was questioned by the Carty team about her involvement in the Point Inn episode, he said “She was never in the Point Inn, she was supposed to go there but she never went.” This, remarkably, was not pursued. Ms. McGlinchy said McMahon had told her he had got other, named, people to plant drugs for him.

    Mr. Mohan said that the €500,000 award for general damages was, so disproportionate - “by a factor of far more than 25% - that it more than met the ‘no reasonable proportion’ test which Mr. Cush had set out”. He again emphasised that this sum approximately equated to the award in
    de Rossa, and the State had accepted that this was a worse case than
    de Rossa. He emphasised the role of the gardaí in frustrating temporary release and pointed to the uncontradicted evidence about what the prison governor told Mr. Shortt in this regard.

    In relation to Mr. Cush’s final submissions based on the decision in
    Genport Mr. Mohan said that the significance of that case was limited to the punitive element in an award of exemplary damages: the decision did not at all affect the assessment of such damages based on exemplary factors, which should proceed on the basis set out in the judgment of McCarthy J. in Conway.

    Findings on legal issues as to Damages.
    Damages: General Principles.
    It is appropriate to recall the general principles applicable to the assessment of damages in a case such as this one. This is essential background both to the consideration of the submissions made about the judgment of the learned President and, more generally, to the assessment of damages if the appeal against the learned President’s judgment is upheld.

    This is a claim for compensation under a statutory provision. The statute is the Criminal Procedure Act, 1993, s.9 of which deals with “Compensation for miscarriage of justice”. Insofar as is relevant the Section provides;
    “(9)(1) Where a person has been convicted of an offence and…

                (a)(i) His conviction has been quashed by the Court
                [of Criminal Appeal] on an application under
                s.2… and

                (ii) The Court… has certified that newly discovered fact shows that there has been a miscarriage of justice…

                The Minister shall, subject to subsections (2) and (3), make compensation to the convicted person…
            (2) A person to whom subsection (1) relates shall have the option of applying for compensation or of instituting an action for damages arising out of his conviction”.

    In the present case, the plaintiff instituted an action for damages.
    As appears from pages 2 and 3 of the judgment of the learned President, with the agreement of the parties he assessed “damages pursuant to s.9(2)of the Act in respect of the period commencing on the date on which the plaintiff was charged.”

    Also by agreement, the learned President decided to “make a single award rather than to break the same down into a number of discrete heads of award in respect of the various headings of claim which could be maintained at Common Law”. The learned President pointed out that the plaintiff was making his claim pursuant to s.9 of the Act of 1993, and “further or in the alternative damages for breach of constitutional rights, conspiracy, negligence and breach of duty, malicious prosecution, false imprisonment, loss of reputation including but not confined to damages for libel and slander and damages for deliberate and conscious abuse of statutory power”. In this regard the learned President said:
            “I do not propose making awards under any of those headings in respect of anything which occurred after the plaintiff was charged notwithstanding that the evidence would entitle a claim on all or any of such bases to succeed in the alternative to the claim under s.9. I will however have regard by analogy to the Common Law in relation to such claims insofar as the plaintiff claims damages and aggravated and/or exemplary damages in respect of his claim under s.29. I adopt this approach upon the basis that the parties are in agreement that I should do so.”
    I would proceed on the same basis.

    It would appear therefore that, by agreement, the plaintiff is entitled to damages under s.9, which include but are not limited to the various Common Law causes of action listed by the learned President. This is so in respect of all events happening after Mr. Shortt was charged: in respect of events predating that he is left to his Common Law rights.
    As to the general principles of assessing damages, there was on the hearing of this appeal no dispute as to the authority of the decision of this Court in Conway v. Irish National Teachers Organisation [1991] 2 IR 305. There, Finlay C.J. had this to say at page 316ff:
            “In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are in my view potentially relevant to any particular case. They are:

            (1) Ordinary compensatory damages, being sums
                calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.
            (2) Aggravated damages being compensatory damages increased by reason of

                (a) The manner in which the wrong was committed, involving such elements as oppressiveness, arrogance, or outrage, or

                (b) The conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to repeat the wrong, or

                (c) The conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff up to and including the trial of the action.

                Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part or recognition of the added hurt or insult to a plaintiff who has been wronged, and in part a recognition of the cavalier or outrageous conduct of the defendant.

        (3) Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the Courts particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, and quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered. I have purposely used the above phrase ‘punitive or exemplary damages’ because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be regarded as constituting the same element”.
        (Emphasis added)

    In the same case, McCarthy J. in a passage beginning at p.526 said, referring to a case of established governmental or State wrongdoing:
            “in such case, if in any case, it must be open to award exemplary damages. Where the wrongdoer is not a governmental or State agency the relevant consideration is amount rather than liability. The purpose of awarding such damages is truly to make an example of the wrongdoer so as to show others that such wrongdoing will not be tolerated and more to the point, will not be relieved on payment of merely compensatory damages. It does provide a windfall for the successful plaintiff; the application of the evidentiary rule to which I have referred may provide the most handsome windfall, that of freedom - to the person charged with a criminal offence.

            The Constitution in guaranteeing rights imposes corresponding duties. In the instant case, the defendant’s in deliberately interfering with the plaintiff’s right have failed in their own duties. Every member of the judiciary has made a public declaration to uphold the Constitution; it would be a singular failure to do so if the Courts did not, in appropriate cases such as this, award such damages as to make an example of those who set at nought constitutional rights of others. As the Chief Justice has said, that is not to say that in every case, such as defamation or assault, where there is also by definition a breach of a constitutional right, there should be an award of exemplary damages. In my judgment there was here a compelling case for the award of such damages”.
            (Emphasis added)

    While other cases were cited in the course of the argument I am satisfied that Conway sets out the basic principles of our law on the fundamental classifications of damages, and that these are sufficient to deal with some of the fundamental matters in difference on the hearing of this appeal.

    Aggravated and exemplary damages.
    At p.57 of the judgment of the learned President, he had this to say about aggravated damages:
            “It can be said that both aggravated and exemplary damages are awarded in respect of the external circumstances accompanying the cause of action. The former are measured on the basis of compensation. They represent additional compensation to a plaintiff where his sense of injury is heightened by the manner in which or the motive for which the act giving rise to the claim was committed. Such damages represent a recognition of the added hurt or insult to the plaintiff who has been wronged and a recognition of the cavalier or outrageous conduct of the defendant. They can extend to conduct subsequent to the conduct which gives rise to the claim. See Conway v. INTO [1991] 2 IR 305. Having regard to the evidence adduced on the application for a certificate pursuant to the Criminal Procedure Act, 1993, s.9(1) it is fair to say that the plaintiff was sacrificed in order to assist the career and ambitions of a number of members of the Garda Síochána. However the Court must be diligent to ensure that there is no element of double compensation. The award of damages by analogy to the Common Law in relation to those causes of action which the defendant’s conduct would constitute is intended to take account of injury to feelings, loss of dignity, humiliation, frustration, helplessness and despair including in the case of a claim under the 1993 Act despair at the failure of the criminal justice system. In these circumstances I do not think it appropriate to make an award under this heading”.

    Turning to exemplary damages, the learned trial judge had this to say at p.58:
            “As for exemplary damages I adopt from the Law Reform Commission report on aggravated exemplary and restitutionally damages a passage at paragraph 1.01:
                ‘The aim of exemplary damages is twofold: to punish the defendant and to deter both the defendant and others from engaging in conduct that is extremely malicious or socially harmful, in Lord Devlin’s own words to teach the wrongdoer that tort does not pay. An exemplary damages award may also be intended to vindicate the rights of the plaintiff or as Lord Devlin stated in Rookes v. Bernard to vindicate the strength of the law. It has the additionally incidental effect of providing compensation and satisfaction to the plaintiff. In the context of the Constitution the particular purpose of exemplary damages is to vindicate and defend individual constitutional rights, to punish the defendant’s disregard of them and to deter their breach’.

                While an argument exists as to the rationality of awarding exemplary damages where liability is vicarious, the Supreme Court had no difficulty in making such an award in McIntyre v. Lewis & Ors. [1991] 1 IR 121 in respect of a claim for assault false imprisonment and malicious prosecution against gardaí and the State. The plaintiff was awarded compensatory damages of £5,000 and exemplary damages of £20,000. However the Court must be also conscious that it does not award double compensation here. In the circumstances of this case there was an outrageous abuse of power by the garda officers involved. Evidence was planted. Perjured evidence was relied upon. It had not been expected by them that the plaintiff would be sent to prison but when he was they took no step to remedy the situation. I propose to mark this conduct. I am satisfied that the circumstances of this case fully justify an award of substantial exemplary damages. However again I must be conscious of the risk of double compensation. I propose to award the plaintiff under this heading the sum £50,000”.

    Plaintiff’s entitlement to aggravated and exemplary damages.
    As has been seen earlier in this judgment the principle issues on damages raised on the hearing of this appeal relate to the refusal to make any award of aggravated damages, on the basis that it would constitute double compensation on the one hand, and the reduction in the quantum of exemplary damages for the same reason, in order to avoid double compensation.

    As we have seen, on the hearing of the appeal the State conceded that the second finding, that in relation to exemplary damages, is wrong. Specifically, it was conceded that the President had not been correct to consider the risk of double compensation as a factor capable of reducing the award of exemplary damages, because such damages were not at all compensatory in nature.

    In my view, this was a well advised concession on the part of the authorities. The purpose of exemplary damages, as stated by McCarthy J. in the extract from his judgment quoted above, is “… truly to make an example of the wrongdoer so as to show others that such wrong will not be tolerated and more to the point will not be relieved on the payment of merely compensatory damages. It does provide a windfall for the successful plaintiff…”.

    It appears to me to follow from this analysis, which is quite consistent with that of Finlay C.J. in the same case, where the award of exemplary damages is stated to be “… quite apart from [the] obligation… to compensate the plaintiff for the damage which he has suffered”, that indeed exemplary damages as they are currently understood are in a category quite separate from compensatory or aggravated damages. As is pointed out in the judgments in Conway the term “exemplary” is sometimes used interchangeably with “punitive”. The learned judges in that case explained the reason for their preferring the former term. On the facts of the present case, I would share that preference. Even if this plaintiff were awarded a truly enormous sum under this heading, I doubt if it could be described in any real sense as “punitive”. The money would not come from the pocket of any individual or even from any individual company or other business entity. It would in the end be levied on the tax payer and neither the gardaí who committed the tort, or any individual member of the force, would be one cent the worse for the award. Such an award cannot truly be described as punitive. On the other hand it seems quite possible to make an award which will “make an example of” the wrongdoers here and the legal entities responsible for them by marking in terms that everyone can understand the sheer evil of what was done and the detestation which the Courts, speaking for civil society in general, must feel and express for it. I will return to these topics below: for present purposes it is sufficient to note that they are quite separate in principle and reality from compensation: they are “quite apart from” compensation to use the phrase of Chief Justice Finlay. Accordingly I believe that it was incorrect to consider, in reduction of exemplary damages, the risk of double compensation.

    On the topic of aggravated damages, the position of the State is a more nuanced one. The relevant part of the extract from the learned trial judge’s judgment above appears to me to be:
            “… The Court must be diligent to ensure that there is no element of double compensation. The award of damages by analogy to the common law in relation to those causes of action which the defendant’s conduct would constitute is intended to take account of injury to feelings, loss of dignity, humiliation, frustration, helplessness and despair including in the case of a claim under the 1993 Act despair at the failure of the criminal justice system. In these circumstances I do not think it appropriate to make an award under this heading”.

    All of the factors just listed relate to feelings and perceptions of the plaintiff. It is quite true to say that such consequential injury to feelings, which may be extreme, are included in the things which an award of “ordinary compensatory damages” are to redress. In the extract from the judgment of Finlay C.J. in Conway, above, he refers under the heading of ordinary compensatory damages to “mental distress, anxiety, deprivation of convenience or other harmful effects…”.

    Aggravated damages, on the other hand focus, not on the feelings of the plaintiff, but on the actions and demeanour of the defendant. This emerges clearly from a consideration of the indicative list of three criteria on the basis of any one of which aggravated damages may be awarded. This is contained in the judgment of Finlay C.J. at p.317. Whether the commission of the tort occurred in a manner involving “oppressiveness, arrogance or outrage”, whether the wrongdoers conduct after the tort “such as a refusal to apologise or ameliorate the harm done or the making of threats to repeat the wrong” exacerbate the wrong; whether the conduct of the wrongdoer “in the defence of the claim of the wronged plaintiff” will aggravate the damages - all feature on the conduct of the defendant, their servants or agents and not on the plaintiff. Aggravated damages are compensatory damages increased by the presence or absence of the factors mentioned by Finlay C.J. or others. It is, therefore, wrong in principle to say that an award of compensatory damages which takes account of the plaintiff’s emotional distress (here, an extremely important factor: the man was driven to despair) exhausts the capacity for an award of aggravated damages.

    But that is not the end of the issue on aggravated damages because Mr. Cush contends, in the alternative, that all of the factors which might otherwise ground an award of aggravated damages were, in the particular circumstances of the present case, “inherent in the claim”. If this submission means that because Mr. Shortt’s claim was for damage caused by a conspiracy by gardaí, he is debarred from an award of aggravated damages because the wrongdoers’ status as gardaí was essential to enable them to act as they did, I cannot accept it. It is quite possible to be damnified by perjury on the part of a person who is not a member of An Garda Síochána or the holder of any official position. Equally, it is quite possible to be deprived of one’s liberty, perhaps for years, (by, for example, terrorists as in the case of Mr. Terry Waite), without any ostensible process of law. Even apart from the status of the immediate wrongdoers, there are in my view many features of “oppressiveness arrogance or outrage” about the conduct of the “paying parties” in the present case. A series of false charges were preferred against an innocent man in the cynical expectation that he would, and would be advised to, plead guilty to at least one of them as part of a “semi-deal”. As a result of his refusal to do this he was sent forward to a higher court without sufficient evidence and eventually received a three year sentence. This caused some drunken distress to one of the wrongdoers but he absolutely refused “to apologise or to ameliorate the harm done”, as did his superior. Moreover, it appears to me, the offer to get him early release if he withdrew his appeal, thereby acknowledging his guilt, clearly and necessarily implied that if he did not do so he would be left to rot in jail which is clearly in my view a “threat to repeat the wrong”, or at least to continue it. Furthermore, the conduct of the wrongdoers after Mr. Shortt’s release was equally scandalous: his attempt to obtain the redress of having his conviction declared a miscarriage of justice was met with deliberate cynical and continuous perjury during the long hearing in the Court of Criminal Appeal.

    From the foregoing it will be clear that I accept the submission of Mr. Mohan S.C. that Mr. Shortt “ticked all the boxes” for an award of aggravated damages. It would be sufficient if he ticked one. Furthermore, it seems to me that many of the features just mentioned are separate and apart from the initial conspiracy, even though they would not have occurred but for that seminal event. It was not necessary to the conspiracy, for example, that the plaintiff be denied temporary release, that an attempt was made to get him to acknowledge his guilt as the price of early release, or that perjured evidence was deployed in answer to his claim for redress.

    Not only this is a case where aggravated damages, in addition to ordinary compensatory damages are available; I believe it is case where it is imperatively necessary in justice that they be awarded.

    Damages suffered by Francis Shortt.
    (i) General damages.
        The following appears to me to be a summary list of the post charge damage (other than special damage) sustained by Mr. Shortt.
        He was exposed to massively damaging publicity. He was brought before the District Court. He was apparently invited to acknowledge his guilt on a single charge failing which he would be sent forward for trial. When he refused, the prosecution procured his return for trial even though there was admittedly no sufficient case against him on the statements then to hand. He was returned for trial to the Circuit Court and tried on some only of the charges against him. He realised he was on risk of a prison sentence. A month before the first trial date he was served with additional evidence which, for the first time, made the case against him look truly formidable. He was put through a criminal trial which lasted for some days with accompanying publicity. He heard gardaí giving what he knew to be perjured evidence. He was convicted and sentenced to three years imprisonment. He was forthwith put in handcuffs, chained to a prison officer, and removed amidst a blaze of publicity. He was held in Mountjoy Prison in conditions that were not merely unpleasant but frightening. He continued to be held there or in Castlerea Prison. He was not afforded temporary release. He was subjected to many indignities (strip search etc.) incidental to his status as a prisoner. While in prison he heard of the disintegration of his business, the taunting of his children and associated problems and the impoverishment of his wife who sought prisoners’ wives allowance. He saw other prisoners being granted temporary release. He lost his appeal to the Court of Criminal Appeal. He lost all hope and was reduced to a state of despair and, at times, clinical depression. He suffered “relentless” stress. He suffered the physical conditions described in the medical reports of which the most serious was stress related cardiac illness. He was released a tainted and ruined man, with his premises burnt by terrorists reacting to his conviction.
        Over and above the foregoing, but related to some of his sufferings, he was stigmatised as a drug criminal who had been caught. He suffered total loss of reputation. The Court has seen correspondence which makes it clear that he was in grave danger of losing his status as a Fellow and member of the Institute of Chartered Accountants. Though he had not practised this profession for years, it was a status in which he took legitimate pride and was part of his self image. Poignantly, some of his prison letters have “F.C.A.” after his name. The Institute was compelled to institute disciplinary proceedings against him but acted with generous forebearance and adjourned them from time to time at his request and eventually discontinued them after his successful appeal. He was painfully aware that he had few or no friends and that his family were suffering for his supposed misdeeds. He was put in the position of having to choose between maintaining his innocence at the cost of serving his full sentence less only statutory remission or procuring his release by effectively admitting guilt. The threat of further charges was used to pressurise him.
        In a word, Mr. Shortt was stigmatised, imprisoned, suffered the loss of his reputation, his business and his ability to provide for his family. In a very literal sense, he was deliberately and maliciously degraded.
        I do not accept that Mr. Shortt’s reputation has been wholly vindicated by anything that has happened since. If it were desired wholly to vindicate him, it is impossible to understand why the gardaí specifically would not have apologised long since, acknowledged his innocence, and condemned those directly responsible for his misery and degradation. Undoubtedly his reputation must have been beneficially affected by the declaration of a miscarriage of justice. In some oblique way it is probable that the revelation of numerous misdeeds, some almost incredible to the average person, by Donegal based gardaí have made Mr. Shortt’s account of being framed more believable. But he remains, however unfairly, a man of damaged reputation in the eyes of many. I fully accept what was said in evidence by Mr. John Ward on this topic.
    (ii) The following features seem to me to be amongst those which aggravate the damage indicated above. The conspiracy against Mr. Shortt was committed by persons wearing the uniform of the State. The gardaí who were party to it took advantage of the reputation of the Force, earned by generations of dedicated and honest members, and hoped that this reputation would carry them through the difficulties created by improbable aspects of their evidence. This hope was borne out. They acted out of pure self interest: there is little evidence of initial personal malice and none of “noble cause” corruption. Not content with the conviction and sentence they acted to deprive Mr. Shortt of temporary release as long as they could. Someone in authority very cynically arranged that he be offered early release in return for an admission of guilt. When Mr. Shortt first moved to have his conviction set aside on the grounds of newly discovered facts this was agreed to even though at that time he could point only to general evidence of misdeeds by gardaí in the Donegal division. When he moved to have his conviction declared a miscarriage of justice it was opposed on the basis of perjured evidence. The State continued to oppose the declaration of a miscarriage even though anyone listening to the garda evidence would have become deeply suspicious, to say the least. A vital piece of evidence relating to McMahon’s admission of perjury was withheld not only from Mr. Shortt but from the State counsel. When it came to light it transpired that nothing had been done about it. The documents discussed earlier in this judgment which formed the bulk of the newly discovered material were not communicated to Mr. Shortt or his advisers when they came to the attention of the garda authorities. Instead, his lawyers were left to piece his case together, which they did with remarkable diligence, making full use of the provisions for disclosure and discovery.

    Not least of the aggravating factors must be the cynical plausibility with which the garda account was advanced both in the courtroom and in the media. Noel McMahon adopted the demeanour of a plain blunt man doing his sincere best despite the fact that his command of language sometimes failed him and, as he often claimed, that his memory was not good for detail. Kevin Lennon, as Superintendent, made himself available to the media at various times. Mr. Shortt had the unpleasant experience of seeing him giving a new television interview with the Point Inn premises as backdrop while he was in prison. He came across as a media-savvy sophisticated and talented garda officer who appeared gravely concerned about the drug problem and determined to do something about it and who had organised an undoubted coup at the Point Inn but ingratiatingly shared the credit with “the lads” under his command. Yet each of these men was so unscrupulous that, apart from anything else, they seriously frightened each other. As explained above, this led to their eventual unmasking. But when they were in their full power and authority their behaviour to Mr. Shortt was cynical, brutal, calculated and oppressive. Moreover, deep concern was felt in the Garda Síochána in relation to McMahon, who had been rendered unstable by drink, but no-one felt able to do anything about him. He even continued to carry his official firearm, which he was clearly unfit to do, because none of his superiors had the gumption or the moral authority to take it from him.

        It must also be borne in mind that all of these things happened to a man of 60 years of age and upwards without any previous convictions. His age and previous good character have a number of consequences. First of all, it must be obvious that the rigours and terrors of imprisonment will bear harder on a 60 year old of good character and no previous exposure to the criminal law and the penal system than on a 25 year old with a history of violence and many previous convictions. Secondly, when his conviction was eventually declared a miscarriage of justice he was about 70 years old and, on the undisputed evidence, was physically, mentally and emotionally an older man than his chronological age would suggest. He simply had less time and less resilience to rebuild his life. Not only has he lost years that will never come again but the years after his torment abated are, by reason of his age, and the consequences of the wrong done to him, simply less useful for any attempt to regain his previous position in life, in business, and in society.

        One particular event, chronicled in the prison diary, emphasised to me the appalling position in which the applicant here was put. When the still somewhat mysterious offer of transfer to an open prison and early release was made to him, Mr. Shortt took advice as to his position from several sources. He had a consultation, in prison, with a solicitor of undoubted competence who instructed Senior Counsel rightly regarded as a leading expert in the Criminal Law. Having considered the case with all appropriate diligence, counsel felt compelled to advise that he could see no legal course of action with any reasonable prospect of success and that, in the interest of his family, Mr. Shortt should consider the offer seriously. It is plain that he did so, at great emotional cost over a considerable period. I have no doubt that this was an additional agony, not easy to overstate.

        This aspect of the case also emphasises how unpromising the case must have seemed when it was eventually taken on by Mr. John P. Ward, Solicitor, and Counsel retained by him. It was plainly an enormously onerous case and the chances of its success must have appeared very poor. Having regard to Mr. Shortt’s reduced circumstances, the prospect of any payment were extremely remote. The fact that it was brought to a successful conclusion has quite properly earned plaudits: but in my view the fact that so utterly unpromising a case, clearly requiring an enormous investment of time, was taken on in the first place on behalf of a person whom the events of the case themselves had rendered both a pauper and a pariah, reflects well on the legal profession.

    The absence of any apology until the last moment is, perhaps, the final aggravating factor to be considered.
    PART V.
    Exemplary Damages.
    Role and attitude of the Gardaí.
    I firmly believe that, in the public interest, a very substantial sum must be awarded under this heading in order to “make an example of” the wrongdoers here. The enormous power conferred on the gardaí, partly by law and partly by the (often well deserved) trust of the public, make what happened in this case nothing less than an obscenity. These gardaí were out of control: the whole affair graphically illustrates Mr. Justice Morris’s conclusion that the gardaí are “losing their status as a disciplined force”. (Morris Report, paragraph 13.101). What gardaí did to Mr. Shortt was so outrageous as almost to defy description but the garda force has yet to admit this. The former Garda Representative Association representative in Donegal told the Morris Inquiry, speaking of internal disciplinary procedures:
            “It is the nature of the gardaí, we don’t name the names - we don’t want to get anybody into trouble in the Garda Síochána internal matters… we try our best to make sure - we are not going to be hanging our people”. (Morris Report, 12.117)

        The outrageousness of what was done, the very long period required to discover it, the failure of An Garda Síochána itself expressly to acknowledge, and apologise for, the misdeeds of its members and the grave risk to society as a whole if gardaí behave as some of those involved in this case behaved, render it absolutely necessary to make a substantial award of exemplary damages. If there were no such award I firmly believe that Courts would be making themselves part of the problem rather than part of the solution. What happened to Mr. Shortt boggles the mind and almost defeats the imagination. A very significant award is necessary in order to “make an example of” the wrongdoers in a serious way, in the public interest.
    In U.S. v. Salerno 481 U.S. 697, Mr. Justice Thurgood Marshall said:
            “Honouring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse. But at the end of the day the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty only injure those who are wrongfully accused and ultimately ourselves.”

    It occurs to me that the principal shortcut to which we in this jurisdiction have sometimes been prone is that of according a very high degree of credence to garda evidence, simply because it comes from a garda source. This, in turn, is based on an instinct to trust material from this source because experience suggests it is usually reliable. Indeed, it is often hard to see what members of An Garda Síochána would have to gain by lying. Like most lawyers of my generation I have not infrequently heard trial judges, in cases where there was a conflict of evidence between gardaí and defence witnesses, inviting the jury to consider what the gardaí would have to gain by lying, thereby “putting their careers on the line”, or some such phrase.

    If this case and others like it teach anything, it is that it does no favour to an institution like the gardaí to accord their members a special level of presumptive credence. On the contrary, this attitude offers a temptation to unscrupulous gardaí who may assume that, most of the time, the public, the media, judges and juries will accord credence to the garda account, even if it is in certain ways rather improbable. This case plainly demonstrates that some gardaí will lie, simply to benefit their own careers, and lie again, even on oath, to avoid the consequences of having told the first set of lies, and so on. It also reveals that the prospect of this being detected and acknowledged by the gardaí themselves is restricted by an attitude which dictates that “… we don’t name the names… we are not going to be hanging our people…”, in the words of a former G.R.A. representative in Donegal, cited above. Moreover, one must recall that a conspiracy of the sort featured in this case may develop into something much larger than originally intended. It is instructive to consider the attitude of the corrupt Detective Garda, McMahon: he fully expected the whole thing to end in the District Court, with a plea of guilty to one charge and a trivial penalty. He was astonished, even incredulous, that Mr. Shortt and his then solicitor would not play ball with this arrangement simply on the basis that he was not actually guilty. No doubt sincerely, in his own mind, he blamed Mr. Shortt’s original lawyers for all that happened afterwards. He cheerfully participated in the conspiracy to beef up the evidence, orchestrated by his superior, and cheerfully perjured himself in the Circuit Court. But he was horrified at the three year sentence whose injustice he seemed to have recognised though he spoke about it only when drunk. This led him only to slobber drunkenly about what he had done, to his wife and to Adrienne McGlinchy. In other words, Noel McMahon emerges as someone whose life experience has led him into a total disregard for truth, a ready willingness to perjure himself, and an expectation that others, even some amongst his superiors in An Garda Síochána, are just as unscrupulous as he.


    Legal aspects of quantification.
    Certain aspects of exemplary damages have been considered earlier in this judgment, for the purpose of dealing with the submissions in relation to the judgment of the learned President. It is not proposed to repeat now what has already been said, but certain of the passages cited, notably from Conway, are clearly relevant in the assessment of the quantum of such damages.

    In general, I accept what is said in the Law Reform Commission’s paper on aggravated, exemplary and restitutionary damages at paragraphs 101.02 and 1.03:
            Dicta of the Irish Courts referred to punishment and deterrence as equal and interlinked purposes of an exemplary damages award.”

    In Conway v. I.N.T.O [1991] 2 IR 305, the Supreme Court found that the aim of exemplary damages was:
            “… to punish the wrongdoer for his outrageous conduct, to deter him and others from any such conduct in the future, and to mark the Courts… detestation and disapproval of that conduct.” (At 509, per Griffin J.).

    In Cooper v. O’Connell (unreported), Supreme Court, 5th June, 1997, Keane J. noted that “in developing the law of exemplary damages the Courts had been concerned with principles of public policy and with the need, in accordance with these principles, to make an example of the defendant”.

    A similar dictum of McCarthy J. in Conway has already been cited. The Law Reform Commission also reflects these dicta, in my opinion, when it says at paragraph 1.06:
            “It is also important to consider the role of exemplary damages in deterring highly reprehensible conduct, including violations of constitutional rights. In a case where there has been a serious breach of constitutional rights, which the Court considers warrants exemplary damages, there is a public interest in calculating an award that will effectively deter such a breach in the future.” (Emphasis added)

    Despite the practise in certain United Kingdom cases, I consider it important that an award of exemplary damages should be recognised and specifically described as such, rather than merely forming an undifferentiated part of an award of general damages. To proceed in this way makes the exposition of the process whereby damages are arrived at more rational and transparent and also firmly identifies the exemplary aspect, and the precise matters in respect of which such damages are awarded. It has, as far as I know, always been the Irish practise to do this. I have already said that I prefer, at least in the context of a case such as this where the defendants are State Authorities, to regard the sort of damages now under discussion as exemplary rather than punitive, for the reasons given above. The State itself, or a State Authority, is simply not capable of registering personally the punitive aspects of such an award, as a private individual or company is. The classic modes of legal punishment are deprivation of liberty by imprisonment or of property by way of fine: these cannot meaningfully be imposed on a State authority. In the calculation of exemplary damages against a private entity, the means of the wrongdoer are to be taken into account: the reason for this is to graduate the penal element in accordance with the means of the offender. But no individual wrongdoer will lose anything by reason of the award in this case. It would be ludicrous, and plainly contrary to the public interest, to make an award against a public authority such as the Commissioner of An Garda Síochána so large as to reduce the capacity of An Garda Síochána to perform its statutory functions.

    Accordingly, I am of the opinion that in a case such as the present where the defendants are public authorities, the principal consideration in calculating the amount of an award of exemplary damages must be the amount necessary “… truly to make an example of the wrongdoer so as to show others that such wrong will not be tolerated and more to the point will not be relieved on the payment of merely compensatory damages”.
    But I wish to emphasise that, in an appropriate case, both the punitive and the exemplary heads of damage are available to a Court addressing a case on its individual facts.

    Although it is important, for the reason set out above, that exemplary damages be awarded as a separate heading of damages and not included in an omnibus award, the same does not necessarily apply to aggravated damages. Exemplary damages are, and aggravated damages are not, in a category and in respect of an object, quite separate from compensatory damages. Aggravated damages, on the other hand, are compensatory damages increased by reason of the factors set out in the judgment of Finlay C.J. in Conway v. Irish National Teachers Organisation, much cited above. In that case, as it happens, the defendant was not a state authority but a trade union which, in pursuance of an industrial dispute, had interfered with the constitutional rights of certain school children. Mr. Cush cogently argued that the general damages had to be regarded as including what might be regarded as aggravated damages and also sought to avoid, or to minimise, any uplift in the compensatory damages on the basis that the paying parties liability was vicarious only. Certainly it is true that where a conscious and deliberate wrong is done by servants of the State, especially when a perversion of justice is brought about by those charged with enforcing the law, aggravated damages are very likely to arise. This seems to be inevitable by virtue of the matters which Finlay C.J. regarded as calling for an increase in compensatory damages: elements such as oppressiveness arrogance or outrage, and the conduct of the wrongdoer after the commission of the wrong and the conduct of the wrongdoer in legal proceedings. This case, unfortunately, features elements of that kind which do not entirely, and in some cases do not even substantially, overlap with the original wrong. These have been sufficiently outlined above. In the present case I consider, and I understand that my colleagues agree, that a single award should be made in respect of compensatory and aggravated damages. It will not always be appropriate to do this and in particular the case for making separate awards is stronger in a trial court (whether with or without a jury) so that if there is an appeal the elements of the total award can be precisely ascertained. But it is not intended to lay down any hard and fast rule in this regard.

    Furthermore, although this case has many aspects which imperatively call for an award of exemplary damages it must be obvious that such damages will not automatically be called for simply because there is a finding that a particular conviction amounted to a miscarriage of justice. Here, the newly discovered facts, principally the preserved but concealed documents and the evidence of Sheenagh McMahon, clearly reflected on the conduct of the gardaí in the prosecution, both before and during the court hearing. But it is possible to hypothesise a case where, for example, a new scientific discovery or insight factually undermined forensic evidence important to the conviction, and which was advanced at the time of the trial in good faith. In such circumstances, if a new evidence were fairly dealt with by the prosecuting authorities, there might be no cases for an award of exemplary damages. The example taken, of new scientific evidence, is not intended to be exhaustive on the circumstances where no exemplary damages would be called for.

    The purpose of “truly making an example” of the persons legally responsible is above all to deter any repetition of the sort of conduct which attracts those damages in the first place. In the circumstances of this case it is necessary to consider, as a part of this objective of deterrence, that Mr. Shortt’s vindication has been very long in coming in part because of a lack of urgency in the investigation of his case after conviction. This is illustrated, and not exhaustively, by the effective failure to investigate Mrs. McMahon’s perjury allegation, and by the effective loss for a long period of the physical record of that allegation. Moreover, there has been a consistent attempt by the State Authorities to deal with this case on the most minimal basis possible. Firstly it was apparently hoped that a promise of early release would induce Mr. Shortt to drop his appeal. If he were believed to be guilty, it is difficult to see why early release from a sentence of three years imprisonment would be thought appropriate. If it were appropriate to grant him early release it is impossible to see why a condition that he should drop his appeal against his conviction should be attached to such release. Secondly, the Director of Public Prosecutions (who had, remarkably, not then considered Mrs. McMahon’s allegation) agreed to the quashing of Mr. Shortt’s conviction, for no particular stated reason. The application to have Mr. Shortt’s conviction considered, not merely unsafe or unsatisfactory, but a miscarriage of justice, was contested tooth and nail by the Authorities, vital information withheld from State Counsel, and perjured evidence deployed.

    It is not easy to find precedents to guide the Court in awarding damages, whether compensatory, aggravated or exemplary in a case like this. One must start with the State’s concession that Mr. Shortt’s case was the worse case of State oppression of an individual citizen of which the authorities were aware. One must bear in mind the case of Bedford, referred to above, where there was an award of £100,000.00 compensation for a wrongful arrest under s.30 of the Offences against the State Act, with forty-eight hours subsequent detention. One is painfully aware that the case most similar to the present, in that it featured imprisonment for a period of years following a wrongful conviction is that of Edward Noel Kelly and the persons charged with him, referred to above. But those cases were settled, so that there is no court decision on the appropriate level of damages. Moreover, the only information available as to the amount of the settlement is from unauthenticated newspaper accounts, which cannot influence the Court’s decision here. It is of course true that the State must be aware of the amount of those settlements, but it may be that it is precluded, by a confidentiality agreement, from revealing them.

    The case of Mr. Proinsias de Rossa, referred to above, was one of an appalling defamation, printed and disseminated very widely. Drug dealing, or the enjoyment of the proceeds of drug dealing, was part of the utterly false allegation made in that case. But it was unaccompanied by imprisonment and ritual degradation of the victim such as happened in this case and it did not feature the abuse of State power, which was the mechanism of the destruction of Mr. Shortt. Moreover, Mr. de Rossa’s circumstances were such that he was enabled to recover from the attack on him in a much more effective way than Mr. Shortt has been able to do.

    There is no Irish authority to suggest that the award of exemplary damages is limited to the amount of the award of compensatory damages or some lesser sum. In McIntyre v. Lewis [1991] IR 121, the plaintiff was assaulted by some gardaí in Birr, Co. Offaly. They then charged him with assault and released him on bail. He was sent forward for trial on a charge of assaulting a guard but was acquitted. He then sued the Gardaí and the State Authorities. A jury awarded £5,000 damages for assault and false imprisonment and £60,000 damages for malicious prosecution. The Supreme Court altered this award to £5,000 for compensatory damages and £20,000 exemplary or punitive damages in respect of malicious prosecution. O’Flaherty J., while concurring in this award, expressed the view that an award of exemplary damages “should properly be a fraction rather than multiple of the amount awarded by way of compensatory damages”. I wish to say that I cannot agree with this statement. It is inconsistent with the actual result in McIntyre v. Lewis. But, more importantly, it is contrary to what I am satisfied is the true principle of aggravated damages in an action against State Authorities: that it be sufficient “truly to make an example” of the wrongdoers and that it be effective to deter a repetition. I cannot agree that the sum awarded in the High Court in this case is even remotely sufficient in either regard. It must however be recalled that that award was made on the basis of acceptance of a submission which the State resiled from on this appeal.

    Special Damages.
    The assessment of special damages in this case is not an easy one. There was somewhat conflicting expert evidence from Mr. Desmond Peelo and Mr. Ray Jackson, Chartered Accountants, and from Messrs. John P. Younge and Messrs. Morrisseys, two firms of Auctioneers and Valuers each of which has acknowledged expertise in the valuation and sale of licensed premises. All the witnesses mentioned are highly skilled and highly reputed practitioners.

    There is no doubt that Mr. Shortt has lost the stream of income from the Point Inn, and the Point Inn premises themselves, sold by a receiver appointed after his conviction. The premises had by then been burnt by the IRA and have now been restored by the purchaser to a good condition at a cost of about €750,000. Mr. Shortt is also, he claims, at a loss of the potential income from a caravan site adjacent to the Point Inn which he had planning permission to develop. Mr. Shortt’s experts were of the opinion that this scheme would have been profitable in itself and, just as significantly, would have considerably increased the sales in the adjoining pub.

    There are a number of factors which make the calculation of special damages difficult. The premises themselves are unusual, being remote from other facilities or residences, though of course within an easy drive of the City of Derry. They are maritime but not quite beach front premises, a fact which is relevant because everyone agreed that there is a premium for beach front premises, especially caravan parks. It was not easy to find direct comparators for the values of the interest in the land due to these features: in particular, I am satisfied that the “sensational” price obtained for the beach front caravan park in Nairn, Portnoo, Co. Donegal, is not appropriate as a guide. Calculations of loss of income are also difficult because, as Mr. Peelo said:
            “It is difficult to be definitive as to the estimates of income. The disarray and the affairs of the Point Inn in the mid 1990s was such as to result in the available financial information being unreliable as a basis for financial calculations”.

    Equally, this aspect creates considerable uncertainty on the question of whether or not Mr. Shortt would have been in a financial position to fund the development of the caravan park as a venture in itself and as a source of valuable additional custom to the pub.

    A further complicating factor is the limited nature of the trade carried on in the public house. Though the Shortt family had been in possession of these premises since about 1930, the nature of the trade had changed a good deal. To some extent it was perhaps in a state of flux: not long had elapsed since the refurbishment and reopening of the premises which occurred when Mr. Shortt came into sole possession of them following the death of his brother. However, the fact is that the premises had come to trade mainly as an entertainment venue rather than as a public house as that term is traditionally understood. The licensed premises traded only at the weekends and ran a discotheque one night a week. There was some evidence, referred to in the judgment of the learned trial judge, that this reflected the fact that 90% of the clientele came from Northern Ireland: having regard to the fact that Derry was the major centre of population near the premises this is probably true. It illustrates the limited nature of the trade which it was profitable to carry on and this, of course, has consequences for the assessment of the potential.

    That, indeed, was another subject of major dispute. The State’s experts were inclined to value the premises by virtue of their capital value calculated principally on the basis of a multiple of turnover. Mr. Peelo and Mr. Younge were keen to build in a figure for potential, and the learned trial judge did this as best he could on the somewhat unsatisfactory evidence which was all that was available to him.

    Having carefully considered the reports, the evidence and the judgment, I am not satisfied that it has been shown that the learned trial judge was in error in any of these respects including the deductions which he made. Accordingly, under this heading, I would uphold the findings of the learned trial judge. I would also uphold the fairly nominal assessment of €5,000 in respect of general damages at common law in respect of which there are certain difficulties of proof.
    Awards and Order
    Based on the matters set out above at some length, and bearing in mind the concession that this case is the worst of its kind of which the State Authorities are aware, and considering the unchallenged evidence of Mr. Shortt and those who gave evidence on his behalf, I concur in the awards of damages under each of the relevant heads in the sums proposed by the learned Chief Justice.

    For the reasons set out above I would order the payment by the defendants jointly and severally to the plaintiff of the total sum of four million six hundred and twenty-three thousand eight hundred and seventy-one euro. (€4,623,871.00).

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