An Chúirt Uachtarach
The Supreme Court
Record number: 2012/8876P
Appeal number: 372/2013
D F (called Desmond on this appeal) (suing by his next friend K McE) (called Maeve on this appeal)
The Commissioner of An Garda Síochána
The Minister for Justice, Equality and Defence
Ireland and the Attorney General
Judgment of Mr Justice Charleton delivered on Friday the 15th day of May 2015
1. This appeal raises two issues: firstly, when does a plaintiff have an entitlement to trial by jury where multiple torts are pleaded in respect of an arrest incident; and, secondly, when does a party to proceedings have a statutory entitlement to anonymity based on embarrassment arising from of a medical condition. The appeal is from two judgments of Hogan J in the High Court: DF v Garda Commissioner & Others  IEHC 5, as to the jury trial issue; and DF v Garda Commissioner & Others (No 2)  IEHC 312, as to the anonymity issue. On this appeal the plaintiff appellant will have the assumed name of “Desmond”. The defendant respondents will be referred to as “the State”. There have been now three written judgments related to this case in the High Court. The third relates to the viability of constitutional torts alongside civil wrongs defined at common law; DF v Garda Commissioner & Others (No 3)  IEHC 213 and is not part of this appeal. Counsel for Desmond has complained of being subjected to a multitude of procedural motions from the State. While it is understandable that those drafting a plenary summons and a statement of claim would wish, in aid of a plaintiff, to include all relevant causes of action, the result of pleading multiple and diverse apparent causes of action may be that the opposing side requires to interrogate these. That approach to pleading can obfuscate the core issue in a case.
The incident and the pleadings
2. a declaration that the detention was unlawful
3. damages from false imprisonment
4. damages for assault, battery and trespass to the person
5. damages for personal injury, loss damage and expense and psychiatric injury
6. damages for negligence and breach of duties of a statutory kind
7. damages from breach of the plaintiff’s Constitutional rights to liberty, bodily integrity and privacy
8. damages for failure to defendant vindicates these rights and to protect the plaintiff from unjust attack
9. damages for breach of the plaintiff’s rights under the European Convention on Human Rights Act 2003 “to include, inter alia, the rights to liberty, to private and family life and the right not to be subjected to inhuman and degrading treatment”
10. damages for breach of Articles 3.1, 4, 6 and 7 of the Charter of Fundamental Rights of the European Union
11. aggravated, punitive or exemplary damages
12. such further and/or other relief as the court thinks fit
13. interest pursuant to statute
5. The incident was simple: the core issue is whether there was a lawful arrest and a lawful detention. It is really about whether Desmond was unlawfully arrested. When gardaí arrest someone they usually place them in a squad car or use reasonable force to usher them into a Garda station or a cell. That involves unwanted touching. Hence false arrest and intentional trespass to the person, assault, are connected torts. Apart from that, a subsidiary issue may arise on the pleadings in this case as to whether the statutory mechanism for dealing with complaints was not followed by the State defendants and as to whether, as a matter of law, this gives rise to an entitlement to damages.
Jury trial in civil cases
7. In making that ruling, the trial judge was particularly influenced by the relevant provisions of the Rules of the Superior Courts. This emerges, in particular, from his conclusion on this issue at paragraph 40:
9. With the passing of the Supreme Court of Judicature Act (Ireland), 1877 the then extant right to jury trial was preserved for civil actions, meaning Queen’s Bench, as opposed to Chancery causes. Section 48 of the Act of 1877 provides that:
4. In all cases not within the preceding rule, the parties serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried without or with the jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within four days from the service of ordinary notice of trial, within two days from the service of short notice of trial, within such extended time as the Court or a Judge may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.
5. The Court or a Judge may, if it shall appear desirable, direct trial without a jury of any question or issue of fact, or party of fact and party of law, arising in any cause or matter which previously to the passing of the principle Act could, without any consent of the parties, have been tried without a jury, and such trial may if so ordered by the Court or a Judge, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.
6. In all cases not within rule 5, the parties serving notice of trial shall state in such notice whether he requires that the issues of fact shall be tried with or without a jury, and in case he requires the same to be tried without a jury, the same shall be so tried, unless the other party or parties, or any of them, shall within fourteen days from the service of notice of trial, or within such time as the Court may allow, signify his desire by notice in writing to have the same tried with a jury, whereupon the same shall be so tried.
7. The court may, if it shall appear desirable, direct a trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter which, without any consent of parties, can be tried without a jury, and such trial may, if so ordered by the Court, take place at the same time as the trial by a jury of any issues of fact in the same cause or matter.
13. In respect of civil cases, the traditional approach as to the division of responsibilities between judge and jury has always been for a judge to decide as a matter of law what questions should be put to a jury and then to instruct the jury as to the applicable law. This has consistently provided sufficient guidance for juries. They decide the facts in such a way that their answers to questions encapsulate the elements of the tort which has been tried before them. Thus, the legal function of the judge, in the absence of the jury, is to consider, with counsel if necessary, how questions in a civil jury trial may best be framed. At the end of the trial, the jury is addressed by counsel on both sides and is then charged as to the law by the trial judge. The jury then retires to consider the answers to the questions posed. In a civil case these answers take the form of its verdict.
14. Were there to be an issue in this case as to whether Desmond was or was not brought under arrest to the Garda station, supposing that the defence had denied that fact, the first question for the jury would be: was the plaintiff arrested on the occasion in question? Since that is not an issue in the case, it appears that the other factual elements which are disputed may simply be put by the trial judge to the jury in the form of numbered questions. It is not possible to offer any guidance, much less make a decision, as to what these might be, but looming large is the question as to whether there was information upon which the gardaí might reasonably accept the reports made to them; whether that information coupled with the behaviour of Desmond when they arrived at the scene was such whereby they reasonably concluded that he was a person suffering from a mental disorder such that there was a serious likelihood of the plaintiff causing immediate and serious harm to himself or to other persons. The reality of this case is that the gardaí arrested him either in accordance with the legal power or not. These are matters of fact. If the answer to those questions were in the affirmative, damages would not be assessed because the arrest would be lawful. It would appear that were the answer to the jury questions in the negative as to the foundation for the arrest, the jury would go on to assess damages.
15. Issues of law arise on the pleadings which do not give rise to a right to jury trial. These are, firstly, in respect of the alleged wrong of the State in respect of complaints made in the aftermath of the release of Desmond and, secondly, in respect of the elements of the constitutional torts which are claimed to be integral to the case by counsel on behalf of Desmond in order to vindicate his rights to liberty, bodily integrity and privacy. There is no claim that section 12 of the Mental Health Act 2001 infringes the Constitution.
16. Added to the pleas of false imprisonment and assault have been novel constitutional torts. There is no basis in statute whereby such torts, should they exist at all, may be tried by a jury. The legal issue of whether such torts exist or whether this case is in reality one about false imprisonment is a matter of law for the judge. Those torts, if they exist at all, could not be ones covered by any statutory entitlement to trial by jury for civil wrongs preserved by the Act of 1877, since these did not exist prior to 1937. It is thus clear that no right to trial by jury exists for constitutional torts.
17. Secondly, there are the common law remedies, the primary one here being based on an alleged false imprisonment, involving as it does physical restraint; hence trespass to the person or, in other words, assault. Since the Act of 1877, the entitlement to jury trial was preserved through section 94 of the Courts of Justice Act 1924. That entitlement, however, has since been severely curtailed: reduced to a very small category of actions in the High Court through the Courts Act 1988. Section 1 of the Act of 1988 abolishes trial by jury for actions “claiming damages in respect of personal injuries caused by negligence, nuisance or breach of duty”. Similarly excluded from trial by civil jury are claims under section 48 of the Civil Liability Act 1961 and actions arising from section 18 of the Air Navigation and Transport Act 1936, as amended. Included in the abolition of civil jury trial are actions in which “damages are claimed both in respect of personal injuries… and in respect of another matter” and damages claims “other than [for] personal injuries”. Death is, for these statutory purposes, a personal injury which does not carry the entitlement to a civil jury trial. Jury actions are not available, further, where the claim arises “directly or indirectly from an act or omission that also resulted in personal injuries”. An unqualified summary of the reform would be that personal injury actions, which up to 1988 were grist to the mill in legal practice before juries, were now to be tried by a judge alone. To this statutory reform, however, there is a saver. Section 1(3) provides that the removal of the entitlement to civil jury trial is not to apply to:
(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) for another cause of action in respect of the same act or omission, unless it appears to the court … that, having regard to the evidence likely to be given at the trial in support of the claim, it is not reasonable to claim damages for false imprisonment or intentional trespassed the person or both … in respect of that act or omission, or
(c) a question of fact or an issue arising in the action referred to in paragraph (a) or (b) of this subsection other than an issue arising in an action referred to in the said paragraph (b) as to whether, having regard to the evidence likely to be given at the trial in support of the claim concerned, it is reasonable to claim damages for false imprisonment, intentional trespassed to the person or both, as the case may be, in respect of the actor omission concerned.
19. In Sheridan v Kelly  1 IR 314, the plaintiff sued in respect of sexual abuse at the school which he attended in the junior cycle. In addition, claims for negligence, in failing to become aware of and prevent the abuse, and claims based upon vicarious liability of the school in respect of the same actions were included in the statement of claim. In the High Court, a trial before a judge sitting alone was ordered on the basis that the claim consisted of a personal injury action in respect of negligence. Giving the judgment of the Supreme Court, Fennelly J reversed that decision and ordered a civil jury trial. While the action was one for intentional trespass to the person and for negligence, despite a plea that the was a failure to have in place procedures or measures appropriate for the supervision of teachers, a classic negligence claim, the essence of the plaintiff’s claim was that he had been unlawfully touched by one of his teachers. Further, the claims of assault and of negligence arose out of the same alleged act or omission, the statutory test. At page 319 of the report, Fennelly J rejected the argument on behalf of the defendants in favour of a trial by judge alone and stated:
In the present case, the plaintiff’s claim is that he suffered personal injury as a result of the assaults committed by the first defendant. Any act alleged against the second named defendant is claimed to have led to the same damage. I am satisfied that this claim comes within s. 1 (3)(b) of the Act of 1988. Therefore, the plaintiff is entitled to have his claim heard by a judge sitting with a jury. I would allow the appeal and substitute an order dismissing the notice of motion of the second defendant.
Nothing in this judgment affects the normal discretion of the High Court to decide whether the different issues in the case are to be tried separately or together, whether by the application of O.18, r;1 of the Rules of the Superior Courts 1986 or otherwise.
21. In addition, it was asserted by counsel for the State that Order 36 Rule 7 of the Rules of the Superior Courts entitles the trial judge to order a trial by judge alone notwithstanding that there is an entitlement pursuant to legislation for the trial to be one by a judge sitting with a jury. That argument cannot succeed. The Superior Courts Rules Committee is not entitled to overrule the provisions of the Act of 1988. That Committee does valuable work in proceedings of the courts through establishing appropriate rules in aid of the proper administration of justice. It is not a legislative body. Furthermore, it is clear that the meaning sought to be attributed to this rule by the State amounts to a misinterpretation; one that is perhaps attractive given the anomalous context in which the rule now exists. When the rule says that the “Court may, if it shall appear desirable, direct trial without a jury of any question or issue of fact, or partly of fact and partly of law, arising in any cause or matter” that authority is expressly directed to any action where “without any consent of parties” a trial can take place “without a jury”. Once it is decided as a matter of law that section 1(3) of the Act of 1988 applies, in other words that the action is one which carried the entitlement of a jury trial, the action ceases to be one where without the consent of the parties a trial by judge alone can take place.
(2) An application for an order under this section may be made at any stage of the proceedings.
(3) The court shall grant an order under this section only if it is satisfied that-
(a) the relevant person concerned has a medical condition,
(b) his or her identification as a person with that condition would be likely to cause undue stress to him or her, and
(c) the order would not be prejudicial to the interests of justice.
23. Subsection 4 provides for an appeal in the ordinary way. Subsection 5 allows a court to which an order is appealed to vary or revoke the order. While subsection 6 states that an application for an order may be made by a party to the proceedings, under subsection 11 this includes both a party to the proceedings and includes any person called, or proposed to be called, as a witness. While notice “to the other party or parties to the proceedings” is required under subsection 6, this need not be by notice of motion. Letters may be exchanged instead; the necessity for a motion then perhaps becoming apparent if there is no disagreement, though the decision is always that of the judge. The same subsection provides that an application for such an order is to be made “to the judge concerned in chambers.” Subsection 7 makes it a criminal offence, carrying a fine of €25,000 or prison for 3 months or both, to defy such an order and the relevant mental element is specified in subsection 8.
24. The learned trial judge held that section 27 of the Act of 2008 had to be interpreted in the light of the constitutional imperative for public access to hearings. This, Hogan J held, required a restrictive interpretation of this provision so that the full scope of Article 38.1 was not undermined. The constitutional guarantee, the trial judge reasoned, required not only that the doors of the court be open to the public and the press but that all that went on in court could be reported, most especially relevant here as to who was taking the case and who was defending it and, it follows, who were the witnesses. The trial judge was clearly influenced by the ordinary way in which courts conduct their procedure. Anonymity can be abused. In McKeogh v John Doe 1 & ors  IEHC 95, a young man was wrongly identified on social media as not paying a taxi fare. He was subjected to on-line attacks on his good name by those hiding behind the confidentiality of internet service providers. But, the Oireachtas must be taken to be aware of that aspect of human nature and to be able to draw the appropriate balance. Hogan J held that anonymity was not possible in this case. The trial judge especially relied on the judgment of Laffoy J in Roe v Blood Transfusion Service Board  3 IR 67 at 71 and the decision of McCracken J in Re Ansbacher (Cayman) Ltd  2 IR 517 and ruling of Clarke J in Doe v Revenue Commissioners  3 IR 328. All of these decisions, in the absence of the express legislative exception prescribed in Article 38.1 of the Constitution, and in the particular circumstances of those cases in that context, held that anonymity could not be ordered for the litigants in those cases. Here it is different. There is legislation providing for a limited departure from a full open hearing as contemplated by Article 34.1, provided particular terms are judicially adjudicated to have been met. The Oireachtas has fulfilled its function of determining whether it is appropriate that, and in what circumstances, a party to proceedings, plaintiff or defendant, applicant or respondent, or a witness or prospective witness, is entitled to be seen by the public in court, observed by and reported on by the press but, exceptionally, is to be kept unidentified in any written judgment of the court or in media reports. This minor and exceptional departure from open reporting is possible once a series of statutory tests have been met. That is different to the exercise of a jurisdiction dependant solely on Article 34.1 which is not informed by the legislation contemplated by the Constitution. The trial judge was concerned with inequality; a situation where an anonymous person could bring proceedings but a defendant sued in respect of a civil wrong could not have the same privileged exception from the full application of a public and fully publicly reported hearing. At paragraph 33, the trial judge held as follows:
27. On this appeal, one of the main arguments of the State has been that the level of autism suffered by Desmond is such that he would have no awareness of being in court or of his case being reported. An expert report was furnished in that regard. That expert report, while accepted by the trial judge, does not take into account the effect that reporting the name of a plaintiff or a defendant or a witness can have in a society where, globally, people can be harried and undermined by anonymous internet malice. Hogan J predicted the consequences of this by reference to the McKeogh case. As the trial judge correctly identified, Desmond needs routine, loves watching horses, guards a particular patch of ground as a task appointed by his mind and does not need people of malice being attracted to him or intruding on that space. This would be an all too unfortunate and predictable result of the publication of his name, address and medical particulars.
28. Finally, it might also be noted that the change in the law that section 27 of the Act of 2008 represents took place against a background of people being required to litigate and have their names and address reported notwithstanding that they were living dignified lives and choosing to hide, or partly conceal, debilitating and embarrassing conditions. The change brought about by the Act of 2008 has not meant that such plaintiffs or defendants or witnesses get a hearing in camera. Such a hearing is not secret. What it does mean that a much lesser form of protection may be appropriately given as a necessary concession in our society where the terms of that entitlement are met in accordance with the will of the Oireachtas.
29. Construing the section on its own terms, therefore, Desmond is a party to proceedings, he has a medical condition, namely autism, and identifying him as such is likely to subject him to undue stress. This is due to the predictable reaction of others. There is no basis for assuming that his serious and medically proven condition will not impact on the ease with which Desmond can take a case. In reality, he is under a disability. The vast majority of litigants and witnesses are not. The State also argued on this appeal that anonymity should not be granted to Desmond because more witnesses might emerge through reading the reports and volunteering to give evidence for the defence side of the case. In that respect, it is claimed that the “interests of justice” require that such an order not be made. The focus of the argument is correct. The test as set out in s.27(3)(c) requires that such an order should be “prejudicial to the interests of justice”. That does not either require or allow a recasting of the section so to take any considerations of open justice into account under Article 34.1. Reporting restrictions, it is claimed, might result in a witness being unaware of proceedings and so undermine a fair hearing. That inventive argument cannot be validly made on the pleadings in this case. On the basis of the defence, the gardaí claim to have had reports requiring their intervention. On arriving at the scene where the stick waving and chasing had, as had been reported to them, apparently taken place, they apparently reached a conclusion that they should arrest Desmond because of his mental condition and it being a danger to himself and others. The application of that power of arrest is what this case is about. The validity of those actions is to be judged according to the reports to the gardaí and their own observations. There is no danger of prejudice to justice by Desmond being named in reports of proceedings in that way instead of under his own name and address.
Structuring this case
31. There will be an order requiring that Desmond be not identified in the media when this case comes on for trial or in any reporting of this any other decision of the courts. His assumed name may be used instead and the place of the incident may be stated to be in the West of Ireland.
32. The time-honoured manner whereby simple questions are put by the trial judge to the jury trying a civil case and a decree is made either in favour of a plaintiff or dismissing a case consequent upon those answers should be followed. During the hearing of this appeal, the Court was told that a new statement of claim has now been delivered excluding claims in negligence, but this pleading was not seen on this appeal. Whatever its import, which cannot now be commented upon, there remain elaborate and legally complex claims that the tort of false imprisonment and assault are inadequate to protect the constitutional rights of Desmond. There further exist claims that the European Convention on Human Rights establishes other, and presumably wider, obligations that were somehow allegedly infringed. This case needs to return to what it is, in fact, about.
33. Both sides agree that this young man Desmond was arrested. The ostensible justification was based upon the report of facts which may be the subject of dispute that a jury will have to resolve. Whatever decision is reached by the jury, based upon whatever questions are put by the trial judge to the jury, will impact upon the core defence which is that section 12 of the Mental Health Act 2001 justified arrest in those circumstances. If there are wider obligations then are already defined in tort law, in respect of whatever other claims are also pleaded arising out of the same incident, these will need to be decided by the trial judge since there is no right to trial by jury in respect of these alleged torts. Once these are disposed of, the jury may be asked to decide the facts relevant to the core claim; was a power of arrest exercised in good faith by members of An Garda Síochána in within the terms of a statutory power.